JUDGMENT : 1. Heard Mr. S.C. Keyal, the learned counsel appearing on behalf of the Petitioner and Mr. R.S. Mishra, the learned counsel appearing on behalf of the Respondents. 2. This is an application filed under Article 227 of the Constitution of India challenging the order dated 20.01.2021 by which three applications filed by the Petitioner were rejected. 3. The Petition No.37/2020 was an application under Order VI Rule 17 of the Code seeking amendment to insert three paragraphs to the written statement i.e. Paragraph No.3(a), 6(a) and 7(a). A perusal of the said paragraphs would show that the Petitioner herein as Defendant wanted to insert the point of non-joinder of all the legal heirs of Late Girish Deo Ojha and all the legal heirs of Late Kashinath Ojha on the ground that they were necessary parties for determining the real question of controversy. In terms with Paragraph 6(a), a preliminary objection was taken to the effect that the suit was barred under Order II Rule 2 of the CPC on the ground that the plaintiffs’ predecessor in interest Late Mangal Singh Lal Chetry had already relinquished his claim over the suit land based on a cause of action for the suit for declaration in Title Suit No.75/2006. By Paragraph 7(a), the defendant wanted to insert a sentence to the effect that the description of the suit land is wrong and there is no passage to the suit land. The said application was filed admittedly after the trial has commenced inasmuch as the plaintiff witness No.1 was cross-examined and the plaintiff witness Nos. 2 and 3 whose evidence were accepted with cross-examination taking into account that the defendants did not cross-examine the said plaintiff witness Nos. 2 and 3, it was deemed to have been declined. 4. The second petition is Petition No.38/2020 whereby the Petitioner/the Defendant No.1 sought for recalling of the plaintiff witness No.1 as well as also for recalling of the orders dated 09.10.2018 and 12.12.2018 by which the cross-examination of PWs 2 and 3 was deemed to have been declined. 5. The third petition i.e. Petition No.39/2020 was an application filed for calling for the case records being Case No.213/1994 from the Court of the Executive Magistrate between Sri. Mangal Singh Lal Chetry and Sri. 5. The third petition i.e. Petition No.39/2020 was an application filed for calling for the case records being Case No.213/1994 from the Court of the Executive Magistrate between Sri. Mangal Singh Lal Chetry and Sri. Girish Deo Ojha which was disposed of on 01.07.2002 on the ground that the said records are material for the adjudication of the said dispute. 6. The Trial Court vide the impugned order rejected the Petition No.37/2020 on the ground that permitting the amendment would amount to filling up a lacuna of the case that too when no due diligence have been shown by the defendant as to why the said amendment could not have been sought for prior to the commencement of the trial. 7. The Petition No.38/2020 was partly allowed by the Trial Court thereby allowing the defendants to cross-examine the plaintiff witness No.2 and plaintiff witness No.3. However, as regards the recalling of the plaintiff witness No.1, the same was not allowed taking into account that the plaintiff witness No.1 was duly cross-examined and discharged. The learned Court below observed that after considering the materials on record including the evidence-in-chief and cross-examination of PW-1, there appears no relevancy and necessity to recall the PW-1 for the proper adjudication of the suit. It was observed that just because a new counsel has been engaged in a case, that cannot be a justified ground to recall the witness. Accordingly, on the basis of the said observations, the said petition No.38/2020 was partly allowed. 8. The Petition No.39/2020 was rejected by the Trial Court holding inter alia that the said petition was not supported by an affidavit which is a mandatory requirement as per the provisions of order XIII Rule 10 of the CPC. The Court also observed that there was no mention as to how the records are material to the instant case. It was also observed by the Trial Court after going through the copy of the order passed in Case No.213/1994 that the same was not essential for proper adjudication of the suit. On the basis thereof, the Petition No.39/2020 was rejected. It is against the said common order dated 20.01.2021 that the instant application has been filed under Article 227 of the Constitution of India. 9. On the basis thereof, the Petition No.39/2020 was rejected. It is against the said common order dated 20.01.2021 that the instant application has been filed under Article 227 of the Constitution of India. 9. The learned counsel for the Petitioner submitted that he does not want to press the rejection of Petition No.37/2020 taking into account that in the written statement, there are already averments made to the effect on the ground of non-joinder of necessary parties and also on the ground of res-judicata. He however submits that taking into account certain vital aspects of the matter have not been cross-examined of the PW-1, the Petition No.38/2020 ought to have been allowed for recalling the plaintiff witness No.1. As regards the rejection of Petition No.39/2020 the learned counsel submits that the defect in the petition is a curable defect and as such he submits that the defendant may be permitted to file an appropriate application stating the reasons as to why the said records are essential along with an affidavit in support thereof. 10. On the other hand Mr. R. S. Mishra, the learned counsel appearing on behalf of the Respondents submits that the reasons assigned in all the three petitions is on the ground that a new counsel has been engaged. He submits that a new counsel being engaged cannot be a ground for changing the defence which was not taken or changing the course of a trial which have proceeded. Drawing the attention of this Court to the application seeking recall of the plaintiff witness No.1, he submits that the only reason assigned in the said application could be seen paragraph No.3 of the said application wherein it has been mentioned that the PW-1 needs to be further cross-examined on several issues which were very material for the proper adjudication of the suit. There is no mention whatsoever as regards why the PW-1 was recalled. There is no mention whatsoever as regards why the PW-1 was recalled. As regards the rejection of the Petition No.39/2020, the learned counsel submitted that the Court below was absolutely justified in rejecting the said petition taking into account that it is the mandate of law under Order XIII Rule 10 of the Code that such application has to be supported by way of an affidavit stating how the records is material to the suit and the applicant without unreasonable delay or expenses cannot obtain a duly authenticated copy of the record or the production of the original is necessary for the purpose of justice. He submits that sans an affidavit filed along with an application under Order XIII Rule 10, the said application was justifiably rejected. 11. Upon hearing the learned counsel for both the parties and on perusal of the records, this Court is of the opinion that the Court below had rightly rejected the Petition No.37/2020 for amendment of the written statement inasmuch as first the trial have already commenced and there was no justifiable reason showing due diligence of the defendant as to why the paragraphs she sought to insert was not included prior to the commencement of the trial. It would also relevant herein to mention that the PW-1 has already been cross-examined, the PW-2 and 3 have already submitted their evidence on affidavit and at this stage if the said amendments are allowed, it would serious injustice to the plaintiff. Taking into account the well settled principle of law that an amendment should not be allowed which causes injustice to the Opposite Party, this Court is of the opinion that the Court below has rightly rejected the Petition No.37/2020. 12. Now coming to the Petition No.38/2020, it appears that the Court below have allowed the defendants to cross-examine the plaintiff witness Nos. 2 and 3 however refused to recall the plaintiff witness No.1. Upon perusal of the application filed seeking recall of the plaintiff witness No.1, there is no reason assigned except stating that the newly engaged counsel had opined that certain vital aspects of the matter was left for cross-examination. 2 and 3 however refused to recall the plaintiff witness No.1. Upon perusal of the application filed seeking recall of the plaintiff witness No.1, there is no reason assigned except stating that the newly engaged counsel had opined that certain vital aspects of the matter was left for cross-examination. In the opinion of this Court, the Trial Court was absolutely justified in rejecting the prayer for recalling of the PW-1 in view of the fact that a change in the counsel cannot be a reason for recalling a witness who have been discharged after being cross-examined. An engagement for a new counsel and his/her advice that the witness ought to have been cross-examined in a particular manner, in the opinion of this Court cannot be a justified reason for recalling of a witness. Under such circumstances, this Court therefore finds no reason to interfere with the order passed by the Trial Court insofar as the Petition No.38/2020. 13. Now coming to the Petition No.39/2020, this Court is of the opinion that taking into account the provisions of Order XIII Rule 10, the Court below was also justified in rejecting the said petition on the ground that there was no affidavit is filed in support to the application under Order XIII Rule 10. However, this Court is also of the opinion that as the Petition was not filed along with an affidavit, the right of the defendant to call for the particular document cannot be foreclose on such technical matter. Considering the above, this Court is of the opinion that an opportunity ought to be granted to the defendant to file an appropriate application along with affidavit stating in detail the reasons why the said record is essential for adjudication of the suit. This Court is also of the opinion that if such application is filed by the next date as fixed by this Court, the Trial Court shall take into consideration the said application in accordance with law without being influenced by the order dated 20.01.2021 whereby the Petition No.39/2020 was rejected as well as the observations made hereinabove. 14. Considering the above, this Court therefore finds no reasons to interfere with the order dated 20.01.2021 passed insofar as Petition No.37/2020 and Petition No.38/2020. 14. Considering the above, this Court therefore finds no reasons to interfere with the order dated 20.01.2021 passed insofar as Petition No.37/2020 and Petition No.38/2020. However, as regards in Petition No.39/2020 though this Court does not find any reason to interfere but for the ends of justice permits the defendant to file an appropriate application, if so advised, by the next date fixed, in accordance with law for calling for the records of Case No.213/1994 from the Court of Executive Magistrate and on such application being filed, the Court below shall without being influenced by the order dated 20.01.2021 passed in respect to the Petition No.39/2020 shall consider the said application and pass appropriate order in accordance with law taking into account as to whether the said records are essential for the adjudication of the dispute and the mandate of Order XIII Rule 10 of the CPC. 15. This Court vide an order dated 01.11.2021 had stayed further proceedings of Title Suit No.111/2016 pending before the Court of the Munsiff No.2, at Dibrugarh. The said interim order stands vacated and the parties are directed to appear on 09.11.2022 before the Court below i.e. the Court of Court of the Munsiff No.2, at Dibrugarh on which date the Petitioner/the Defendant in the suit, if so advised, shall file the application under Order XIII Rule 10 for calling for the records of Case No.213/1994. It is observed that if such application is not filed on or before the said date fixed, the order dated 20.01.2021 insofar as the Petition No.39/2020 shall hold the field. 16. With above observations and directions, the instant petition stands disposed of.