Gauhati High Court
Arun Gogoi vs Labanya Das & 13 Ors on 6 September, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP 98 of 2017
ARUN GOGOI .....Petitioner
-Versus-
LABANYA DAS & 13 ORS. .....Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioner : Mr. P.C. Dey, Ms. S. Paul, Mr. I. Haque.
Advocates for the Respondents : Mr. R.K. Bhuyan, Mr. N. Bharali, : Mr. P. Boiragi, Ms. B. Talukdar, : Mr. G.G. Gogoi, Mr. S.J. Sarma, : Ms. M. Das, Mr. K. Saikia, : Mr. R. Rabha, Mr. A. Zaman.
Date of hearing : 04.09.2017.
Date of judgment and order : 06.09.2017.
JUDGMENT AND ORDER (CAV)
Heard Mr. P.C. Dey, the learned Counsel for the petitioners, Mr. R.K. Bhuyan, the learned counsel for the respondent No.3 and Mr. N. Bharali, the learned Counsel for the respondents No.11 to 14. None appears on call for the other respondents No. 5, 7 and 10, whose counsels had entered appearance by filing vakalatnama. None appears for remaining respondents No. 1, 2, 4, 8 and 9, although notices have been duly served on them.
2) In challenge in this application under Article 227 of the Constitution of India is the order dated 23.05.2016 passed by the Court of the learned Civil Judge No.2, Kamrup (Metropolitan), Guwahati in Misc. (J) Case No. 554/2016, CRP 98/2017 Page 1 of 17 thereby rejecting the application filed by the petitioner - plaintiff under Order VI Rule 17 CPC.
3) The petitioner - plaintiff had originally instituted the said suit against the respondents No. 10 herein, out of which the respondents No.1 to 8 were arrayed as Defendants No.1 to 8 and the respondents No. 9 and 10 herein were arrayed as Proforma Defendants. The following reliefs were prayed in the plaint:-
i. A decree for declaring that the revocation of Power-of-Attorney No. 1532/2002 dated 02.04.2002 vide Revocation of Power-of-Attorney Deed No. 1850/2002 dated 18.04.2002 by the Defendant No. 1 and 3 illegal, null and void;
ii. A decree for recovery of Rs.56,91,000/- (Rupees fifty-six lakhs and ninety one thousand) only from the defendants either jointly or severally being the advance money taken from the plaintiff along with the interest @ 18% per annum;
iii. A decree for recovery of Rs.25,00,000/- (Rupees twenty five lakhs) only from defendants as compensation for the loss and for causing mental agony an harassment to the plaintiff alongwith the interest @ 18 per annum;
iv. A decree for costs of the suit;
v. Any other relief/reliefs which the plaintiff is entitled under the law and
equity.
4) During the pendency of the suit, the petitioner by filing petition No.
1046/2015 dated 11.03.2015 under Order I Rule 10(2) CPC, prayed for impleading the Respondents No.11 to 14 and one Smrt. Birathi Nath (dead) herein as Proforma Defendants, which was allowed by the learned trial court by order dated 23.05.2016 and the said 5 (five) persons were arrayed as Proforma Defendants No.11 to 15. The court is surprised to find that despite mention in the cause title of the said petition that Late Birathi Nath was dead, yet the CRP 98/2017 Page 2 of 17 learned trial court had permitted a dead person to be impleaded as a party in the suit.
5) On 09.08.2016, the petitioner filed an application under Order VI Rule 17 CPC for amendment of the plaint, which was numbered as petition No. 3840 and registered as Misc. (J) Case No. 554/16. It was projected in the said petition that during the pendency of the suit, it had come to the knowledge of the petitioner that the Proforma Defendant No.10 had entered into a "Deed of Mutual Compromise & Settlement" dated 15.12.2014 with Smt. Birathi Nath (since deceased) and the respondents No.11 to 14 herein to sell a plot of land measuring 5B-2K-9L covered by Dag No. 509, K.P. Patta No.20 of a particular Village and Mouza (forming a part of land described in Schedule-A of the plaint).
Owing to the said subsequent development, the prayer for amendment of the plaint was made.
6) In the meantime, the newly impleaded defendants No.12 to 15 (i.e. respondents No. 11 to 14 herein) filed their written statement on 26.08.2016. They also filed their written objection against the amendment petition on 08.12.2016.
7) The learned trial court, upon hearing the counsels for the appearing parties, arrived at a finding that the petitioner- plaintiff was not a party to the said agreement dated 15.12.2014 and that the amendment sought for was not germane to the strife between the parties and that by the proposed amendment, the petitioner herein was seeking to bring in the matter involving the Proforma Defendants No.11 to 15 (i.e. deceased proforma defendant No.11 and Proforma Respondents No.11 to 14 herein), which is beyond the scope of adjudication in a suit for revocation for power of attorney executed by defendant No.1 and 2. It was held that that it was a basic rule of every civil litigation that the rights of the parties must be determined on the basis of the date of filing of the suit. It was also held that if the amendment of the plaint was allowed it would change the CRP 98/2017 Page 3 of 17 nature and character of the plaint and that at most, the plaintiff may be advised to bring a separate suit to challenge the deed of compromise, subject to provisions of law.
8) The learned counsel for the petitioner submits that while one of the challenge in the plaint filed by the petitioner was that revocation of the Power of Attorney No. 1532/2002 dated 02.04.2002 vide Revocation of Power of Attorney Deed No. 1850/2002 by the defendant No.1 was illegal and void, if the mutual settlement vide deed dated 15.12.2014 is not challenged and allowed to stand, in the event, the said prayer in the plaint is decided in his favour, that decree would stand frustrated. He has submitted that although Sri Pradip Prakash Das (Proforma Defendant No.10) had signed the said agreement with the Proforma Defendants No. 11 to 15, under clause 1 thereof, he was to receive the consideration for the land mentioned thereunder and would distribute it amongst the Defendants No.1 to 8 and Proforma Defendants No.9 and 10 and, as such, the same was to frustrate the suit, where one of the reliefs was that the revocation of the Power of Attorney by the defendants No.1 and 2 was illegal. It is submitted that in the event the prayer (i) of the plaint was decreed, then the right flowing in respect of the land covered by "Deed of Mutual Compromise & Settlement dated 15.12.2014" would revert back to him. It is submitted that if the petitioner is entitled to file a separate suit, then in order to shorten litigation and to avoid multiplicity of litigation, it would be in the interest of justice to allow the amendment of the plaint. It is submitted that the petition for amendment was filed after issues were framed and before the plaintiff had submitted the Evidence- On- Affidavit of the Plaintiff's Witnesses (PWs for short). In support of his argument, the learned counsel for the petitioner has relied on the case of (i) Sampath Kumar Vs. Ayyakannu & Anr., (2002) 7 SCC 559, and (ii) Rajesh Kumar Aggarwal & Ors. Vs. K.K. Modi, (2006) 4 SCC 385.
9) Per contra, the learned counsel for the respondent No.3 has argued in support of the impugned order. It is submitted the prayer for challenging the CRP 98/2017 Page 4 of 17 revocation of Power of Attorney was merely an incidental or alternative prayer and the primary prayer of the petitioner- plaintiff was for recovery of a sum of Rs.56,91,000/- from the defendants and a further sum of Rs.25,00,000/- as compensation with 18% interest thereon. It is also submitted that in a suit containing prayers as stated herein before, there is no way that a distinct cause of action arising subsequently on 15.12.2014, when the "Deed of Mutual Compromise & Settlement dated 15.12.2014" was entered, can be joined. Hence, the suit would be bad for joinder of separate cause of action. If such amendment was allowed, it would change the nature and character of the suit and would enlarge the scope of the suit. In course of his argument, the learned counsel for the respondent No.3 has referred to the stand taken by the parties in the plaint and written statements, as well as in the petition for amendment and objection filed thereto.
10) Also opposing the present application, the learned counsel for the Respondents No.11 to 14 has also submitted that the respondents No. 11 to 14 had no involvement in the suit and, as such, they were strangers to the suit. It is submitted that there were two distinct cause of action, which was sought to be joined by the proposed amendment. By referring to the pleadings of the parties, it is submitted that if the proposed amendment is allowed, it would change the basic nature and character of the plaint. It was also submitted that the parties between whom the "Deed of Mutual Compromise & Settlement dated 15.12.2014" was executed, were litigating before this Court in W.P.(C) No. 3909/2009 and after years of litigation, the parties viz., the Proforma Respondent No.10 and Proforma Respondents No. 11 to 14 including Late Birathi Nath, with a view to end the litigation had entered into a compromise and the proceedings of W.P.(C) No. 3909/2009 had ended on compromise and, as such, it was preposterous to allow the proposed amendment, which would question the compromise done in the said writ petition. The learned counsel for the Proforma Respondents No.11 to 14 had made an attempt to submit (i) about the past litigation history, (ii) various agreements relating to the suit land, and (iii) CRP 98/2017 Page 5 of 17 whether the suit and reliefs claimed were barred by limitation, but as the subject matter of this present application was limited to the challenge to the impugned order by which amendment was refused, this court was disinclined to hear the learned counsel for the Proforma Respondents No. 11 to 14 on those points. In support of his argument, the learned counsel had relied on the case of (i) Kanailal Das & Anr. Vs. Jiban Kanai Das, AIR 1977 Cal 189, (ii) Kulbir Singh Vs. Pritpal Shdev, 2011 (3) GLT 539.
11) This court has considered the arguments advanced by the learned counsels for the appearing parties and the cases cited by them.
12) It appears that one of the finding by the learned trial court was that "it was a basic rule of every civil litigation that the rights of the parties must be determined on the basis of the date of filing of the suit." If this finding is put to test on the basis of a hypothetical subsequent event, say, in a suit for confirmation of possession, the plaintiff is dispossessed from the suit land, then whether he will be precluded from amending his plaint to seek recovery of possession merely because the event of dispossession was a subsequent event which is not relatable to the date of filing of the plaint or that it would change the nature and character of the suit. The answer would be a emphatic 'no'. Therefore, in the case of amendment of plaint or written statement, there cannot be a straight jacket formula which can be applied and each case must be tested in the light of its unique facts.
13) The other finding by the learned trial court is that the petitioner was not a party to the "Deed of Mutual Compromise & Settlement dated 15.12.2014". This is very true and no one has disputed this fact. One of the questions which is required to be answered is whether in the event the suit as it stands in the present form is decreed, whether the same would affect the land which is covered by the said deed dated 15.12.2014. To answer this, one must refer to the various plots of land described in Schedules A to G of the plaint. On a perusal CRP 98/2017 Page 6 of 17 thereof, the plot of land measuring 5B-2K-9L, which is the subject matter of Deed dated 15.12.2014, covered by Dag No. 509, K.P. Patta No.20 of a particular Village and Mouza, finds mention in Schedule-A, Schedule-B, Schedule-E and Schedule-G of the plaint. However, on a pointed query by this Court, the learned counsel for the petitioner and Proforma Respondents No.11 to 14 are ad-idem that the land mentioned in "Deed of Mutual Compromise & Settlement dated 15.12.2014" is covered by Schedule-B. The said version is accepted for the time being and it is clarified that the same is not the finding by this court. Thus, if prayer (i) happens to be decreed, it would result in revocation of Power of Attorney being declared illegal and there is no doubt that the purported right of the petitioner- plaintiff over land covered by the said Deed dated 15.12.2014 would stand revived.
14) Addressing the case of Kanailal Das (supra), cited by the learned counsel for the Proforma Respondents No.11 to 14, it is seen that the various principles for allowing amendment of the plaint are stated in paragraph 5 thereof, which is quoted below:-
"(5) THE principles established by judicial decisions in respect of amendment of plaint are as follows:-
(i) All amendments will be generally permissible when they are necessary for determination of the real controversy in the suit.
(ii) All the same, substitution of one cause of action or the nature of the claim for another in the original plaint or change of the subject-matter of or controversy in the suit is not permissible.
(iii) Introduction by amendment of inconsistent or contradictory allegations in negation of the admitted position on facts, or mutually destructive allegations of facts are also impermissible though inconsistent pleas on the admitted position can be introduced by way of amendment.CRP 98/2017 Page 7 of 17
(iv) In general, the amendments should not cause prejudice to the other side which cannot be compensated in costs.
(v) Amendment of a claim or relief which is barred by limitation when the amendment is sought to be made should not be allowed to defeat a legal right accrued except when such consideration is outweighed by the special circumstances of the case."
15) The learned counsel for the Proforma Respondents No.11 to 14 has laid stress on sub-para (ii) of para 5. But in the case in hand, the petitioner is not found to substitute the cause of action or the nature of the claim with another and there appears to be no change in the subject matter of controversy, because in the considered opinion of this Court, even if the amendment is permitted, it would be in the aid of the basic relief under prayer (i) of the plaint as quoted above. The "Deed of Mutual Compromise & Settlement dated 15.12.2014" is executed after the present suit was filed and, a challenge to the said deed is found to be in aid to preserve the right of the petitioner- plaintiff, in the event prayer (i) of the plaint is decreed. The Proforma Defendants No. 11 to 14 were already brought on record by impleading them by order dated 23.05.2016. Thereafter, the plaint is sought to be amended by petition filed on 09.08.2016.
16) Ideally, under the provisions of Order 1 Rule 10(4) CPC, when a defendant is added, the plaint is required to be amended, unless court otherwise directs, and it is provided that amended copies of summons and of the plaint shall be served on the newly impleaded defendants. In this regard, the provisions of Order I Rule 10(4) CPC are quoted below:-
"Order I R ule 10(4) W here defendant added, plaint to be am ended. - Where a defendant is added, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint CRP 98/2017 Page 8 of 17 shall be served on the new defendant and, if the court thinks fit, on the original defendant."
17) Therefore, notwithstanding the provisions of Order VI Rule 17 CPC, this Court is of the considered opinion that on impleading of defendant in a suit, the plaintiff has yet another legal opportunity to amend the plaint, which is not bound by the rigours of the provisions of Order VI Rule 17 CPC.
18) This court in the case of Kulbir Singh (supra), cited by the learned counsel for the Proforma Respondents No.11 to 14, has held that no amendment should be allowed after the trial has commenced unless the court comes to a finding that in spite of due diligence, the party could not have raised the matter before the commencement of trial and it was further held that a party cannot seek amendment of his pleadings so as to project altogether a different case then one projected in the suit. The relevant paragraph 15, 16 and 17 are quoted below:-
"(15) The amendment petition was filed after long 16 years of filing of the suit with the aforesaid statements and prayer. It is in this context, learned Trial Court has held that there was lack of due diligence and that if the amendments are allowed, same would cause prejudice to the defendants/ respondents. It has also been observed that the amendment would change the very basis of the claim of the petitioner /plaintiff in the suit and consequently would lead to change in the nature and character of the suit.
(16) While it is true that as per the principles of law laid down in different decisions relating to prayer for amendment during the pendency of the suit and the stages thereof, a liberal approach is required to be adopted. However, at the same time, it will have to be considered in the context of the nature and character of the suit. If the amendments tend to change the nature and character of the suit to wide extent, it cannot be allowed. Under Order 6 Rule 17 of the CRP 98/2017 Page 9 of 17 CPC, the court may at any stage of the proceeding allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided 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. (17) Needless to say that on the strength of the aforesaid provision, a party cannot seek amendment of his pleadings so as to project altogether a different case than the one which was projected in the suit. In the instant case as noted above, the whole basis of the claim of the plaintiff/petitioner to Schedule A and B properties is the Will executed on 30.04.77. Now by the amended pleadings he seeks to incorporate the properties purportedly come to his share being the member of the Hindu undivided family. While doing so, he has not abandoned the properties enumerated in Schedule A and B."
19) In this regard, this Court has no disagreement with the ratio of the case of Kulbir Singh (supra). However, in this case, the PWs has not been filed. The plaint was amended vide order dated 23.05.2016. and the plaint was then sought to be amended by filing petition on 09.08.2016. Therefore, there appears to be no lack of due diligence on part of the petitioner. Moreover, as stated above, the plaint is required to be amended once a defendant is added. Therefore, the facts of this case are different from the one in Kulbir Singh (supra).
20) It must be re-stated that the learned trial court had held that "if the amendment of the plaint was allowed it would change the nature and character of the plaint and that at most, the plaintiff may be advised to bring a separate suit to challenge the deed of compromise, subject to provisions of law." In this CRP 98/2017 Page 10 of 17 regard, the Hon'ble Supreme Court in the case of (i) Sampath Kumar (supra) and
(ii) Rajesh Kumar Aggarwal (supra), has held that if the party is permitted to file a fresh suit then why he should not be permitted to amend the plaint. The relevant paragraphs are quoted below:-
(i) Sampath Kumar (supra), para 6 to 12:
"6. It is true that the plaintiff on the averments made in the application for amendment proposes to introduce a cause of action which has arisen to the plaintiff during the pendency of the suit. According to the defendant the averments made in the application for amendment are factually incorrect and the defendant was not in possession of the property since before the institution of the suit itself.
7. In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the Trial Court it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the Trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff s revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.
8. In Mst. Rukhmabai Vs. Lala Laxminarayan & Ors. AIR 1960 SC 335, this Court has taken the view that where a suit was filed without seeking an appropriate relief, it is a well settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he seeks to do so.
CRP 98/2017 Page 11 of 179. Order 6 Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting-forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.
10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed (See observations in Siddalingamma and Anr. Vs. Mamtha Shenoy - (2001) 8 SCC 561).
CRP 98/2017 Page 12 of 1711. In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed.
12. On the averments made in the application, the same ought to have been allowed. If the facts alleged by plaintiff are not correct it is open for the defendant to take such plea in the written statement and if the plaintiff fails in substantiating the CRP 98/2017 Page 13 of 17 factual averments and/or the defendant succeeds in substantiating the plea which he would obviously be permitted to raise in his pleading by way of consequential amendment then the suit shall be liable to be dismissed. The defendant is not prejudiced, more so when the amendment was sought for before the commencement of the trial."
(ii) Rajesh Kumar Aggarwal (supra), Para 14 to 19:
"14. Order 6 Rule 17 of CPC reads thus:
17) Amendment of Pleadings - The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided 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."
This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should 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 for which amendment is sought before the commencement of the trial."CRP 98/2017 Page 14 of 17
15. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
16. Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.
17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.
18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, CRP 98/2017 Page 15 of 17 the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.
19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case."
21) Therefore, the observation by the learned trial court that the plaintiff may be advised to bring a separate suit to challenge the deed of compromise is found to be inconsistent with the ratio of the case of (i) Sampath Kumar (supra) and (ii) Rajesh Kumar Aggarwal (supra).
22) It has been held by the Hon'ble Supreme Court of India in the case of Rajesh Kumar Aggarwal (supra) that at the time of allowing or rejecting the prayer for amendment, the court is not permitted to go into the correctness or falsity of the case in the amendment and it should not record any finding on the merit of the amendment, thus, this court is precluded from making any comment on the merit of the proposed amendment as sought to be raised by the learned CRP 98/2017 Page 16 of 17 Counsel for the Proforma Respondents No.11 to 14, as the same would be decided at the time of trial.
23) In view of the above discussions, this court is of the considered opinion that the impugned order passed by the learned trial court in rejecting the proposed amendment on the grounds as narrated in paragraph 7 above appears to be vitiated by jurisdictional error. Hence, this court has no hesitation in setting aside the order dated 23.05.2016 passed by the Court of the learned Civil Judge No.2, Kamrup (Metropolitan), Guwahati in Misc. (J) Case No. 554/2016 arising out of TS No. 216/2013.
24) Consequently, the application under Order VI Rule 17 CPC for amendment of the plaint, which was numbered as petition No. 3840 and registered as Misc. (J) Case No. 554/16 stands allowed. However, as the proposed amendment has caused delay in the disposal of the suit, this Court deems it fit to impose a cost of Rs.5,000/- (Rupees Five thousand only), to be paid by the petitioner- plaintiff to the defendants and proforma defendants in the suit, which shall be shared equally by them. Such cost would be deposited before the learned trial court as a condition precedent for allowing the amendments to be incorporated in the plaint, failing which the right to carry out the proposed amendment shall stand forfeited.
25) The appearing parties who are duly represented by their respective engaged counsels are directed to appear before the Court of the learned Civil Judge No.2, Kamrup (Metropolitan), Guwahati, on 15.09.2017 without any further notice and by submitting a certified copy of this order, shall seek further instructions from the said learned court.
JUDGE Mkumar.
CRP 98/2017 Page 17 of 17