JUDGMENT AND ORDER (ORAL) Heard Mr. B. Sharma, the learned counsel appearing on behalf of the petitioner and Mr. L. K. Borah, the learned counsel appearing on behalf of the respondents. 2. The petitioner herein who was the defendant No.5 in Title Suit No.356/2016 has approached this Court by invoking the supervisory jurisdiction of this Court to challenge the order dated 09.05.2024 passed in Petition No.5289/2023 whereby the application filed by the respondent herein who was the plaintiff in the suit under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) was allowed. 3. Taking into account that delay in disposal of the instant application would impact on the disposal of Title Suit No.356/2016, this Court has taken up the instant proceedings for disposal at the motion stage, more so when the respondent who is on caveat is duly represented. 4. From the materials on record, it is seen that the respondent herein as plaintiff had instituted a suit against the petitioner and proforma opposite parties herein. The said suit was filed seeking declaration of the plaintiff’s right, title and interest and enjoyment of the lift in the four storied RCC building as described in the Schedule to the plaint in terms with the agreement dated 29.11.2006; for a decree for specific performance of the contract directing the defendants to comply with the terms and conditions of the agreement dated 29.11.2006 by way of installing the lift in the building of the plaintiff which was constructed by the defendants; a decree declaring that the building constructed by the defendants is not in accordance with the approved plan and the said building was constructed without following the required building norms; a decree for declaration that the registered Sale Deed bearing Sale Deed No.12694 dated 31.10.2009 and Sale Deed No.12696 dated 03.11.2009 are illegal, null and void and inoperative; for a decree for issuance of precept to the Sub- Registrar, Guwahati Sub-Registry for cancellation of the registered Sale Deed; a decree for ejectment of the defendant Nos.3, 4 & 5 whom the defendant Nos.1 & 2 illegally sold out the three numbers of flats of the aforesaid building by removing their men, agents and employees therefrom; a decree for compensation of Rs.27,50,000/- (Rupees twenty seven lakhs, fifty thousand) only as well as a decree for compensation of Rs.1,00,00,000/- (Rupees one crore) only etc. 5. 5. Pursuant to the filing of the said suit, the defendants filed their respective written statements. It is very pertinent to take note of the written statement filed by the defendant No.5 who is the petitioner herein. At paragraph No.13 of the written statement, it was mentioned that the defendant Nos.1 & 2 had handed over the share of the plaintiff in the month of November, 2008. It was also mentioned that the defendant No. No.5 got his flat with due satisfaction during September, 2009 from the defendant Nos.1 & 2 and there was no any complaint from the defendants. 6. Pursuant to the filing of the written statement, issues were framed and the suit was fixed for hearing. The plaintiff filed the examination-in-chief of his witnesses and the cross-examination of the plaintiff witness No.1 was partly done. At that juncture of the suit, the plaintiff filed an application under Order VI Rule 17 read with Section 151 of the Code. 7. This Court had perused the said application which was registered as Petition No.5289 dated 07.11.2023. It was categorically mentioned at paragraph No.4 that the plaintiff had come to learn during the pendency of the suit recently that the defendant No.2 had most illegally and collusively executed a Registered Deed of Agreement for construction of the flat bearing Deed No.4685/2008 dated 20.03.2008; a Registered Deed of Agreement for Sale of the land being Deed No.4686/2008 dated 20.08.2008 as well as a Registered Deed of Sale bearing Deed No.11384/2009 dated 24.09.2009 in favour of the defendant No.5. It was also mentioned at paragraph No.5 that upon coming to learn about the said illegal Deeds, the plaintiff had applied for the certified copies and the same which was obtained from the Office of the Sub-Registrar, Guwahati on 27.10.2023 and 31.10.2023 and immediately thereupon on 07.11.2023, the application under Order VI Rule 17 of the Code was filed seeking amendment to the plaint. The amendment so sought was for insertion of paragraph Nos.21(A) to 21 (D) as well as seeking an additional relief in the form of relief No.(iva). It is very pertinent to mention that a perusal of the application seeking amendment do not disclose how and when the plaintiff came to learn about the said registered Deeds which were sought to be brought within the ambit of the suit by way of amendment. It is very pertinent to mention that a perusal of the application seeking amendment do not disclose how and when the plaintiff came to learn about the said registered Deeds which were sought to be brought within the ambit of the suit by way of amendment. It is also pertinent to mention that at paragraph No.7 of the application seeking amendment, the plaintiff mentioned that the number of the Deed was wrongly typed as 12696 at relief Nos.(iv) and (v) and therefore sought correction to insert the correct number of the Deed, i.e. 12695. 8. The defendant No.5 filed his written objection. In the written objection, the defendant No.5/petitioner herein took the plea that the plaintiff had failed to show due diligence. It was mentioned that the Registered Deeds which were sought to be brought within the ambit of the suit so as to challenge it were Deeds executed and registered in the year 2009 and after 14 years, the said Deeds were being challenged and if the amendment is allowed, it would come serious prejudice to the Defendant No.5. 9. The learned Trial Court, i.e. the Court of the Civil Judge (Senior Division) No.3, Kamrup (M) at Guwahati vide the order dated 09.05.2024 allowed the said amendment application thereby fixing 15.06.2024 for filing of the amended plaint. 10. The record further reveals that the petitioner herein who is the defendant No.5 filed an application seeking review of the order dated 09.05.2024 passed in Petition No.5289/2023. On the basis of the said application filed, a Misc. Case was registered being Misc.(J) Case No.726/2024. The learned Trial Court vide an order dated 06.08.2024 stayed the further proceedings of the suit in view of the filing of the review application. However, vide the order dated 16.01.2025, the review application was dismissed and thereby the learned Trial Court ordered that the suit shall proceed. The learned Trial Court vide the said order dated 16.01.2025 fixed 13.03.2025 for filing of the amendment plaint. 11. At this stage, this Court finds it very pertinent to observe that there is no reasons assigned as to why almost two months was given for filing the amended plaint. The learned Trial Court vide the said order dated 16.01.2025 fixed 13.03.2025 for filing of the amendment plaint. 11. At this stage, this Court finds it very pertinent to observe that there is no reasons assigned as to why almost two months was given for filing the amended plaint. The record further reveals that on 13.03.2025, the plaintiff then also did not file the amended plaint and filed an application stating inter-alia that the plaintiff was suffering from viral fever, and as such, the amended plaint could not be filed. It is further seen that on 25.03.2025, the said petition so filed by the plaintiff on 13.03.2025 was taken up and the learned Trial Court further granted another three months for filing of the amendment plaint thereby fixing the date for filing of the amended plaint on 16.06.2025. 12. It surprises this Court the manner in which the learned Trial Court granted time to the plaintiff to file the amended plaint. No reasons were assigned as to why almost 5 months time was allowed to the plaintiff for just filing the amended plaint. It seems that the learned Trial Court was not aware of the provisions of Order VI Rule 18 of the Code. The said provision being relevant is reproduced herein under:- 18. Failure to amend after order.- If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time id extended by the Court. 13. It is apposite to mention that after the insertion of the proviso to Order VI Rule 17 of the Code whereby due diligence is an aspect which is required to be taken into consideration when the Trial had commenced, the non-filing of the amended plaint within the time stipulated by the order of the Court allowing the amendment has also to be an important consideration when the Court grants further opportunity to file the amended plaint. In the opinion of this Court, when the Court grants a further opportunity to file the amended plaint/written statement, the Court has to do so by assigning proper reasons and not in a mechanical manner, which appears to be the case herein. It is also the opinion of this Court that if the extension granted to file amended plaint is done in a mechanical manner, the legislature’s intent behind Order VI Rule 18 of the Code would be lost. 14. In the backdrop of the above, let this Court now take into consideration the impugned order whereby the amendment was allowed. At paragraph No.8 of the impugned order, the learned Trial Court provides reasons as to why the amendment should be allowed. Paragraph No.8 of the said order is reproduced herein under:- “8. Upon hearing and perusal it appears that the instant suit is proceeded for cross-examination of PWs which is the initial stage of commencement of trial. The contention of the petitioner/plaintiff is that the proposed amendment has been come to be known recently during the pendency of the instant suit and filed the instant petition. There is no delay in filing the petition. If the proposed amendment is allowed it will not change the nature and character of the suit. In the instant suit plaintiff/petitioner stated that he has come to know about the execution of said Sale Deed/ Agreement only when he received certified copy of the same from the concerned authority. As we know, amendment of the plaint can only be permitted after commencement of trial if and only if, inspite of due diligence, the party seeking amendment could not have raised the matter before the commencement of trial. It appears that plaintiff/ petitioner has filed the instant petition with due diligence.” 15. A perusal of the above order would show that the learned Trial Court was oblivious of the fact that the cross-examination of the plaintiff was going on and there was no adjudication as to whether the plaintiff had due diligence for filing the amendment application at such a late stage. There is also not a single whisper in the amendment application except stating that the plaintiff came to learn recently. There is also not a single whisper in the amendment application except stating that the plaintiff came to learn recently. The manner in which the learned Trial Court had dealt with the amendment application is also shocking in as much as after commencement of the Trail without any adjudication on the aspect of due diligence, application seeking amendment cannot be allowed. 16. This Court at this stage finds it relevant to take note of some of the judgments of the Supreme Court as to how the proviso to the Order VI Rule 17 of the Code was dealt with. In the case of M. Revanna vs. Anjanamma (Dead) by Lrs. & Others reported in (2019) 4 SCC 332 , the Supreme Court dealt with the proviso to Order VI Rule 17 of the Code and observed that it is the burden of the person seeking amendment after the commencement of the Trial to show that inspite of due diligence, such amendment could not have been brought earlier. Paragraph No.7 of the said judgment is reproduced herein below:- “ 7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.” 17. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.” 17. In a recent judgment of the Supreme Court in the case Basavaraj vs. Indira & Others , reported in (2024) 3 SCC 705 , the Supreme Court categorically observed what is required to be taken into consideration while deciding an application seeking amendment. Paragraph Nos.10, 13, 14 & 15 being relevant are reproduced herein below:- “ 10. The proviso to Order 6 Rule 17 CPC provides that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In the case in hand, this is not even the pleaded case of Respondents 1 and 2 before the trial court in the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment. All what was pleaded was oversight. The same cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly the facts were in knowledge of Respondents 1 and 2-plaintiffs. 13. Initially, the suit was filed for partition and separate possession. By way of amendment, relief of declaration of the compromise decree being null and void was also sought. The same would certainly change the nature of the suit, which may be impermissible. 14. This Court in Revajeetu case enumerated the factors to be taken into consideration by the court while dealing with an application for amendment. One of the important factor is as to whether the amendment would cause prejudice to the other side or it fundamentally changes the nature and character of the case or a fresh suit on the amended claim would be barred on the date of filing the application. 15. If the amendment is allowed in the case in hand, certainly prejudice will be caused to the appellant. 15. If the amendment is allowed in the case in hand, certainly prejudice will be caused to the appellant. This is one of the important factors to be seen at the time of consideration of any application for amendment of pleadings. Any right accrued to the opposite party cannot be taken away on account of delay in filing the application.” 18. In the present case, a perusal of the application seeking amendment would show that except stating that recently it came to the notice of the plaintiff, nothing else is mentioned why earlier the plaintiff could not gather the information about the Registered Deeds as well as how the plaintiff recently could come to learn. The learned counsel for the plaintiff/respondent herein though submitted that the plaintiff could learn only during cross- examination, but surprisingly, a perusal of the cross-examination of the plaintiff witness No.1 which is a part of the present proceedings do not mention anything about these Deeds. Under such circumstances, the requirement of due diligence was not met and without consideration of the same, the impugned order was passed. 19. This Court however finds it relevant to observe that at paragraph No.7 of the amendment application, amendment was sought to correct the number of the Deed at relief Nos.(iv) and (v) of the plaint. This amendment in the opinion of this Court is on account of inadvertent mistake and as such the same ought to be allowed. This Court at this stage finds it profitable to refer to the judgment of the Supreme Court in the case of Varun Pahwa vs. Renu Chaudhary , reported in (2019) 15 SCC 628 wherein the Supreme Court observed that amendment of pleadings cannot be rejected if there is some mistake, negligence, inadvertence etc. Taking into account the mistake which was committed in wrong mentioning of the number of the Deed as stated in paragraph No.7 of the Application, the said amendment ought to be allowed. 20. Considering the above, it is the opinion of this Court that the impugned order dated 09.05.2024 suffers from complete non-application of mind for which the impugned order dated 09.05.2024 passed in Petition No.5289/2023 is set aside and quashed. However, in view of the above observations, this Court partly allows the amendment application, i.e. Petition No.5289/2023 only in respect to the amendment sought at paragraph No.7 of the amendment application. However, in view of the above observations, this Court partly allows the amendment application, i.e. Petition No.5289/2023 only in respect to the amendment sought at paragraph No.7 of the amendment application. It is made clear that the amendments sought for at paragraph Nos.6 & 8 of the amendment application are rejected. 21. This Court grants time to the plaintiff to file the amended plaint before the learned Trial Court on or before 13.05.2025 to the extent the amendment is allowed as stated above. It is observed that if the amended plaint is not filed on or before 13.05.2025, the amendment so allowed herein above shall be redundant. 22. The learned Trial Court shall proceed with the suit thereafter in accordance with law. 23. With the above, the instant petition stands partly allowed.