Gauhati High Court
Page No.# 1/6 vs Gautam Das And 19 Ors on 8 September, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/6
GAHC010006812014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/74/2014
AZAHAR ALI and 2 ORS
2: HAZRAT ALI
3: MOBARAK ALI
ALL ARE S/O JAHURUDDIN
R/O HOWLY TOWN
W/NO.2
MAUZA- GHILAZARI
P.S. and DIST- BARPETA
ASSA
VERSUS
GAUTAM DAS and 19 ORS
S/O LT. DASBANDU DAS
2:UTTAM KUMAR DAS
S/O LT. SRI SUSIL KUMAR DAS
3:RAM KRISHNA DAS
S/O LT. NIKHIL CHANDRA DAS
4:MODAN GOPAL DAS
S/O LT. NIKHIL CHANDRA DAS
5:JIBAN KRISHNA DAS
S/O LT. NIKHIL CHANDRA DAS
6:MANIK SIL
S/O LT. MANTU SIL
Page No.# 2/6
7:BAPAN SIL
S/O LT. MANTU SIL
8:BASUDEB SIL
S/O LT. MANTU SIL
9:DHANANJOY SIL
S/O LT. MANTU SIL
10:SANJIB SIL
S/O LT. MANTU SIL
11:MINOTI SIL
D/O LT. MANTU SIL
12:BIKASH SAHA
S/O LT. NARAYAN SAHA
13:PRAKASH SAHA
S/O LT. NARAYAN SAHA
14:PRABHASH SAHA
S/O LT. NARAYAN SAHA
15:BIBHASH SAHA
S/O LT. NARAYAN SAHA
16:BIBHOTI SAHA
S/O LT. RAM CHANDRA SAHA
17:BIBAK SAHA
S/O LT. RAM CHANDRA SAHA
18:DILU SAHA
S/O LT. RAM CHANDRA SAHA
19:NILKANTA SAHA
S/O LT. RAM CHANDRA SAHA
20:TUTAN SAHA
S/O LT. RAM CHANDRA SAHA
ALL ARE R/O HOWLY TOWN
W/NO.2
MOUZA- GHILAZARI
P.S. and DIST- BARPETA
ASSA
Advocate for the Petitioner : MR.A T SARKAR
Page No.# 3/6
Advocate for the Respondent : MR.R SARMA
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 08-09-2022
1. Heard Mr. D. Choudhury, the learned counsel appearing on behalf of the Petitioners and Mr. R. Sarma, the learned counsel appearing on behalf of the Respondents.
2. This is an application under Article 227 of the Constitution challenging the order dated 17.01.2014 whereby the Court below has rejected the application under Order VI Rule 17 for amendment of the plaint on the ground that if such amendment is allowed it would change the nature and character of the entire suit.
3. A perusal of the plaint which has been enclosed as Annexure-1 to the instant application shows that the plaintiffs claimed that they has purchased the suit land from the Defendant Nos. 1 to 5 and thereupon the names of the plaintiffs were duly mutated in the records. It has been stated in Paragraph No.4 of the plaint that the defendants had sold the land by dint of two sale deeds to the plaintiffs' including the said rented rooms of R.C.C. building. It has also been mentioned that plaintiffs have been possessing the said room which is described as Schedule-C to the plaint till the date of filing of the suit. However, in Paragraph Nos. 5 and 6, it appears that the entire cause of action of the plaintiffs is that the defendants in spite of the execution of the deed of sale have not handed over the possession of the suit land to which the plaintiffs Page No.# 4/6 were legally entitled to. In fact, a perusal of Paragraph Nos.6 and 7 of the plaint discloses that the Defendants had denied to deliver the possession of the suit land to the plaintiffs on 06.05.2010 and this aspect of the matter have also been made a part of the cause of action in Paragraph No.7.
4. By way of the amendment which have been sought for by filing an application under Order VI Rule 17, although the sub-paragraphs (a), (b) and
(c) relates to better particulars being furnished but the reading of the paragraph No. (d) and (f) would show a totally contrary picture of what has been stated in the original plaint inasmuch as in paragraph No. (d) by which the amendment was sought for to paragraph No. 3 of the original plaint, it has been mentioned that the plaintiffs took possession over the two plots of land with two specified boundaries and were put in possession by the seller at the time of sale. It was also mentioned that the possession of lands which was taken over by the plaintiffs within the boundaries does not tally with the boundaries of the two sale deeds and as such the plaintiffs also sought for rectification of the boundaries of the two sale deeds. In Paragraph No. (f) which is the proposed amendment of paragraph No.5 of the original plaint, a completely new case has been sought to be incorporated whereby it has been mentioned that the plaintiffs have been dispossessed by the defendants from the suit land by putting a lock whereas in the original plaint, it is the specific case of the plaintiffs that they were not at all handed over the possession of the suit land.
5. Under such circumstances, the amendment which have been sought for would definitely change the nature and character of the suit and also if allowed, would be permitting certain admissions in the plaint to be resiled which cannot be permitted in the garb of an application under Order VI Rule 17 of the Code.
6. The learned counsel for the Petitioners submits that there is a mistake in Page No.# 5/6 the sale deeds in so far as southern boundary mentioned therein in the Schedule to the sale deeds which requires rectification and on various occasions the plaintiffs have requested the defendants to make the rectification. But on account of the death of one vendor namely Desabandhu Das, the other vendors have denied to rectify the wrong boundary of the two sale deeds. He submits that by way of this amendment application, the said rectification was also sought for and rejection of the said application would also amount to rejection of the relief for rectification of the Deeds of sale wherein the parameters under Order VI Rule 17 does not strictly apply. He further submits that such rectifications are sought for in terms with Section 26 of the Specific Relief Act, 1963 which can be allowed at any time during the pendency of the suit.
7. Upon hearing the learned counsels for the parties and what has been observed hereinabove as well as also taking into account the order impugned in the instant proceedings, this Court is of the opinion that this is not a fit case for exercise of jurisdiction under Article 227 of the Constitution of the India for interfering with the order dated 17.01.2014 passed in Title Suit No.132/2010 inasmuch as allowing the said amendment would completely change the nature and character of the suit. The Trial Court was therefore justified in passing the impugned order. Accordingly, the instant petition stands dismissed.
8. Before concluding, this Court would like to take note of that right to seek rectification of an instrument or a contract is embodied under Section 26 of the Specific Relief Act, 1963. Based on the satisfaction of the parameters as laid down in Section 26(1) of the Act of 1963, the Court upon finding that the instrument requires rectification on account of fraud or mistake or does not express the real intention of the parties, direct rectification of the instrument within the purview of Sub-Section (2) of Section 26. The Proviso to Sub-Section Page No.# 6/6 (4) of Section 26 also categorically mandates that where a party has not claimed any relief in his pleadings, the Court shall, at any stage of a proceeding, allow him to amend the pleading on such terms as may be just for including such claim. This proviso to Section 26(4) is akin to the provisions of Section 21(5) and Section 22(2) of the Act of 1963 and it is well settled that in such amendments so sought for, the restrictive proviso to the Order VI Rule 17 shall not apply.
9. Considering the above, the plaintiffs/the petitioners herein, if so advised would be at liberty to file appropriate application seeking amendment of the pleadings in terms with the proviso to Section 26(4) of the Act of 1963 seeking rectification of the Deeds of sale.
10. In that view of the matter, the order dated 10.03.2014 by which Title Suit No.132/2010 pending before the Court of the Munsiff No.1 Barpeta was stayed is hereby vacated and the parties are directed to appear before the Trial Court on 28.10.2022.
11. The Registry is directed to return the LCR forthwith so that the Court below is in a position to take up the suit for further consideration on 28.10.2022.
JUDGE Comparing Assistant