Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 367 (GAU)

Janeki Nath Saikia v. Kalpana Saikia

2017-03-23

KALYAN RAI SURANA

body2017
JUDGMENT & ORDER : 1. Heard Mr. T.J. Mahanta, learned Senior Counsel assisted by Ms. P. Bhattacharjee, counsel for the petitioners and Mr. D.C. Kath Kazarika, learned counsel for the respondents. 2. By filing this application under Article 227 of the Constitution of India, the petitioner has prayed for setting aside the order dated 22.04.2016 passed by the learned Civil Judge, Nagaon, in Misc. (J) Case No. 26/2016 (in TS No. 52/2014), by which the petition filed by the petitioner under Order IV Rule 17 read with section 151 of the Civil Procedure Code for allowing amendment of plaint was rejected. 3. The case as projected by the petitioners in the plaint is that their father was the owner of a piece and parcel of land measuring 8 Bigha-4 katha-15 lecha, covered by Dag No. 13, 193, 296, 305, 756, 924 and 925 of Periodic Patta No. 184 of 1968-69 Settlement of Sialekhowa Kissam under Nizsahar Mouza in the District of Nagaon. He died leaving behind six sons and five daughters, who were possessing the said land jointly. It is alleged that one of the brothers of the petitioners was living with a woman without any solemnization of any marriage and she along with her son managed to get their names mutated in respect of the said land behind the back of the petitioners, which was done without issuance of any notice to them as patta-holders and thereafter managed to obtain a separate patta, bearing Periodic Patta No. 357 in their names. Thereafter, the said plot of land was sold by the respondents No. 1 and 2 to two other persons, i.e. respondents No.3 and 4 by executing a registered sale deed. Thereafter, the said plot of land was sold by the respondents No. 1 and 2 to two other persons, i.e. respondents No.3 and 4 by executing a registered sale deed. Under the said broad back-ground, the petitioners instituted the herein before referred suit with prayer (a) for a decree for declaration that the petitioners have 10/11th share in the suit patta land, (b) for decree of declaration that the partition order passed by the Circle Officer in P.P. Case No. 244/11-12 dated 23.11.2012 and also the partition patta issued to the respondents No.1 and 2 are illegal, fraudulently obtained and the so-called partition cannot take away the right of the petitioners herein over the suit land, (c) for cancellation of the order of perfect partition case and the new patta issued by the Revenue authorities, (d) for a decree for mandatory injunction for evicting the respondent No. 3 and 4 herein from the suit land, as well for other reliefs. 4. In course of time, the petitioners had filed a petition for amendment of the plaint, as aforesaid. The following are the proposed amendment to be carried out in the plaint: “1. In para 1 in second line after 924 the number ‘306’ will be added.” 2. In Schedule-A in second line after 924 the number ‘306’ will be added.” 5. In the said petition for amendment, inter-alia, it was projected that at the time of filing the suit, the petitioners had obtained a certified copy of the patta No. 184 of Sialkhowa Kissam, but reference to the said Dag No. 306 was missing there. For the said mistake, the Dag No. 306 was not mentioned in the plaint although Dag No. 306 is a part of land covered by P.P. No. 184, which is a part of original dag of the said original patta. It was further stated that the petitioners could not notice the said defect as they could not read the revenue record properly and therefore, despite due diligence, the petitioners failed to file for amendment before the trial. 6. It was further stated that the petitioners could not notice the said defect as they could not read the revenue record properly and therefore, despite due diligence, the petitioners failed to file for amendment before the trial. 6. The learned Civil Judge, Nagaon, by the order dated 22.04.2016, which is impugned herein, rejected the said petition, by holding that in the written statement, the respondents herein had mentioned about Dag No. 306 and had also submitted a photocopy of the jamabandi and, as such, the petitioners had the knowledge of the said Dag and further held that after commencement of trial, if amendment is allowed, it would change the nature and character of the suit. 7. In order to counter the stand of the petitioners, the respondents No.1 to 4 had filed their written objection in form of an affidavit, wherein it has been stated that this revision is liable to be dismissed in limine as the prayer for amendment was made after commencement of the trial and extracted the excerpts of statements made in their written statement to project that they had made specific statement regarding Dag No. 306 and had taken a stand that the petitioners herein had relinquished their claim over land covered by Dag No. 306. It has also been stated that the evidence of the petitioners’ side is over and, as such no amendment can be allowed at this stage. The learned counsel for the respondents has submitted that allowing of the proposed amendment at this stage would change the schedule of the plaint and shall effect the nature and character of the suit. In support of his contentions, the learned counsel for the respondents has referred to the case of Sushil Kumar Jain vs. Manoj Kumar & Others, (2009) 14 SCC 38 , to bring home his point that due diligence must be proved. However, the issue in the said case was concerning amendment of written statement, and in respect of the same, the Hon’ble Supreme Court had held that the courts are more liberal in allowing amendment of written statement than a plaint and moreover, it was held that in the suit the trial had not begun and, as such, the amendment was allowed. Hence, the said case does not support the argument advanced by the learned counsel for the respondent. Hence, the said case does not support the argument advanced by the learned counsel for the respondent. The learned counsel for the respondents has also relied on the case of Vidyabai & Others vs. Padmalatha & Another, (2009) 2 SCC 409 , to support his case. In the said case, the Hon'ble Supreme Court has held that the proviso to the provisions of Order VI Rule 17 of Code of Civil Procedure is couched in mandatory form and the court’s jurisdiction to allow such an application is taken away, unless the conditions precedent therefor are satisfied, vix, it must come to a conclusion that inspite of due diligence the parties could not have raised the matter before the commencement of the trial. 8. I have considered the rival submissions of the learned counsel for the parties and on perusal of the materials on record, it appears to this court that the petitioner is not setting-up any new claim, but even if the proposed amendment is allowed, the petitioners would be still pursuing their claim of land measuring 8 Bigha-4 katha-15 lecha, covered by Dag No. 13, 193, 296, 305, 756, 924 and 925 of Periodic Patta No. 184 of 1968-69 Settlement of Sialekhowa Kissam under Nizsahar Mouza in the District of Nagaon. No amendment is proposed in respect of area of suit land and even if the proposed amendment is allowed, it would not introduce any new cause of action for the suit. 9. Furthermore, this Court also finds that there is no finding by the learned trial court that the claim of the petitioners that the certified copy of patta, which was referred to by the petitioners in the petition for amendment and submitted as documents along with the plaint, the reference to Dag No. 306 was mot missing. In view of above, this court is of the view that if the certified copy of the relevant land records do not reflect reference of Dag No. 306, it would not be possible for a lay-man to read land revenue record and find out the missing Dag. In view of above, this court is of the view that if the certified copy of the relevant land records do not reflect reference of Dag No. 306, it would not be possible for a lay-man to read land revenue record and find out the missing Dag. In light of above, the non-reading of statements made by the respondents in the written statement cannot be said to be fatal in the singular facts of the present case because in so far as the petitioners are concerned, they had until presentation of the petition for amendment, continued to rely on the certified copy of public record, of which a reasonable presumption can be taken as to the correctness of the entries made therein, until anything contrary comes to the notice of the party relying thereon. 10. In light of above, having noticed that by way of amendment, the petitioners are seeking incorporation of Dag number only in schedule and in paragraph 1 without seeking amendment of even the prayer made in the plaint or in respect of measurement/ area of suit land, such an amendment cannot be said to change the nature and character of the plaint or the suit. It is held that the amendment by way of incorporating “Dag No. 306” would help the learned trial court to arrive at a just and proper decision because the said Dag formed a part of the P.P. No. 184 of 1968-69 Settlement of Sialekhowa Kissam under Nizsahar Mouza. The petitioners herein cannot be blamed for the delay, which was beyond their control as they are found to have relied on a certified copy of the relevant land record in committing the said mistake of not referring it in the plaint. 11. This Court hastens to add that in so far as the legal principles for amendment is concerned, it is trite law that unless the court is satisfied that despite exercise of due diligence, the plaint could not be amended before commencement of trial, such amendment should not be allowed. 11. This Court hastens to add that in so far as the legal principles for amendment is concerned, it is trite law that unless the court is satisfied that despite exercise of due diligence, the plaint could not be amended before commencement of trial, such amendment should not be allowed. However, this case, the said mistake of not noticing Dag No. 306 in Periodic Patta No. 184 is found to have remained unseen because of the mistake in the entries in the certified copy of the relevant land records, under the circumstances, this court is of the view that the petitioners have been able to carve out an exception against the rule in the present case in hand. Therefore, on facts, the present case in hand is distinguishable from the facts involved in the case of Vidyabai & others (supra). 12. Accordingly, this court is of the view that the learned trial court exercised jurisdiction vested in it with material irregularity, which is liable to be corrected by exercise of extraordinary superintending jurisdiction of this court. Hence, this revision is allowed by allowing the amendment as prayed for and the impugned order dated 22.04.2016 passed by the learned Civil Judge, Nagaon, in Misc. (J) Case No. 26/2016 (in TS No. 52/2014) stands modified to the extent as indicated above. The parties are left to bear their own cost. 13. The parties shall appear before the Court of learned Civil Judge, Nagaon on 05.04.2017 to seek further instruction from the said learned court.