Dismissed

Malati Tumung v. Mobin Ali Dewan and 3 Ors.

Gauhati HC10 Feb 2020CRP(I/O)/317/2019

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition seeking to quash an order rejecting a prayer for amendment of plaint under Order VI Rule 17 CPC. The Court held the application was belated and failed to satisfy the requirement of due diligence as the material was available when the written statement was filed.

What did the court decide?

Writ petition stands dismissed. Parties to bear their own cost.

Malati Tumung Vs Mobin Ali Dewan and 3 Ors. — Property and Title | Gauhati HC (2020)

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Page No.# 1/4

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GAHC010233752019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP(I/O) 317/2019

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1:MALATI TUMUNG

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W/O- SRI KARENDRA TUMUNG, VILL- KARCHIA (JOGDAL), P.S- SONAPUR, DIST- KAMRUP (M), ASSAM

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VERSUS

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1:MOBIN ALI DEWAN AND 3 ORS

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S/O- LATE SAKIR ALI DEWAN, R/O- RATAN DEWAN ROAD, ULUBARI, GUWAHATI, DIST- KAMRUP (M), ASSAM

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2:AMINA DEWAN W/O- LATE ROUSON ALI DEWAN R/O- RATAN DEWAN ROAD ULUBARI GUWAHATI DIST- KAMRUP (M) ASSAM

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3:SAJISH ALI DEWAN S/O- LATE ROUSON ALI DEWAN R/O- RATAN DEWAN ROAD ULUBARI GUWAHATI DIST- KAMRUP (M) ASSAM

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4:REEMA DEWAN D/O- LATE ROUSON ALI DEWAN R/O- RATAN DEWAN ROAD ULUBARI GUWAHATI DIST- KAMRUP (M) ASSA

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Advocate for the Petitioner : MR. A C SARMA

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Page No.# 2/4

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Advocate for the Respondent : MR. R J BORDOLOI

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 10.02.2020

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Heard Mr. A.C. Sarma, learned counsel for the petitioner and also Mr. R.J. Bordoloi, learned counsel for the respondents.

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By this application under Article 227 of the Constitution of India, the petitioner has assailed the order dated 21.06.2019 passed by the learned Civil Judge No.2, Kamrup (M), Guwahati in Misc.(J) Case No.162/2018 in T.S. No. 312/2015, thereby rejecting the prayer for amendment filed under Order VI Rule 17 CPC.

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The petitioner herein is the plaintiff in T.S. 312/2015. The suit was instituted for assailing the decree dated 23.05.2013 passed in T.S. 534/2009 by the learned Munsiff No.2, Guwahati as fraudulent, nullity and void and that the judgment and decree so passed was not binding, for recovery of possession of the suit land by claiming that she was illegally evicted from the suit land, and for a precept to restore sale deed No.3347/2009 dated 23.03.2009, as well as for restoration of her mutation, along with other reliefs.

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The respondents contested the suit by filing written statement. Thereafter, the petitioner filed the petition for amendment. It is projected that only recently when the deed of revocation of the power of attorney bearing deed No.2682/2008 dated 14.07.2008 as submitted by the respondents along with written statement was gone through, the petitioner could come to know that the said deed of revocation was signed by only five persons out of nine executors and accordingly, the learned counsel for the petitioner submits that in order to give explanation to the statement made in paragraph 9 of the plaint, the petitioner had prayed that after the first sentence of the paragraph 9 of the plaint in line No.4, the following is required to be added:

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“A- Following sentence is to be added after the first sentence of the paragraph

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9 of the plaint in line no.4-

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“Further the deed of revocation of power of attorney no. 2682/08 dated

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Page No.# 3/4

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14/7/2008 being signed by only 5 persons/ pattadars where as the general power of attorney being no. 7665/06 dated 29/12/06 was executed by 9 persons/ pattadars the deed of revocation was not legal and it existed on the date of execution of sale deed no. 3347/2009 dated- 23/03/2009”

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It is submitted that as the paragraph required to be amended was only an explanatory note which did not change the nature and character of the plaint, and did not create a new cause of action, it is submitted that the petitioner would not be prejudice by amendment of the plaint. The learned counsel for the respondents has submitted that the deed of revocation of general power of attorney is not challenged in the suit and no relief is sought for in respect of the said deed of revocation. It is also submitted that in paragraph 9 of the plaint, sought to be amended, the petitioner had given a reference of 9 persons being executors of the deed of revocation, but by referring to the plaint, it is submitted that there are only 4 defendants in the suit. Hence, it is submitted that if the proposed amendment is allowed, it would bring on record a totally new set of pleadings in respect of which there is no prayer in the plaint.

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Upon perusal of the materials available on record of Misc.(J) Case No.162/2018, on a pointed question asked by the Court, the learned counsel for the petitioner has submitted that in this suit, issues were framed on 02.08.2017. It is seen from the LCR that the amendment petition was filed in petition No.753/2018 dated 21.02.2018. Therefore, it appears that the prayer for amendment was made after the commencement of trial. It is further relevant to mention herein that in paragraph 5 of the amendment petition, the petitioner has stated that she could detect very recently only from the certified copy of the deed of revocation of power of attorney submitted by the defendants (respondents herein) before the Court that the deed of revocation was signed only by 5 persons/ pattadars out of 9 persons/ pattadars. In paragraph 5 of this application, the petitioner has made a statement that the copy of the deed of revocation was submitted by the respondents along with their written statement. From Annexure-3 of this application, it is seen that the written statement was verified on 08.01.2016, as such, it appears that the written statement by the respondents was filed in the month of January, 2016.

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This goes to show that the respondents had not only made statement, but also disclosed the deed of revocation in their written statement filed in January, 2016 and thereafter, the issues were framed on 02.08.2017. Accordingly, the application for amendment

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Page No.# 4/4

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filed on 21.02.2018 is not only belated but it was filed at the stage when the suit was ready for hearing. Such amendment is hit by proviso of Rule 17 of Order VI CPC. Moreover, as the written statement was filed in January, 2016, the petitioner has not been able to satisfy that she has exercised due diligence and could not have raised the matter before the commencement of trial.

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The submissions made by the learned counsel for the petitioner is that the nature of amendment was clarificatory, but in the present case in hand, the petitioner has not sought for any relief in respect of power of attorney and therefore, even if such amendment is allowed, it could not serve any purpose of determining the real intention creating controversy between the parties.

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In view of the discussion above, this Court is not inclined to interfere with the impugned order dated 21.06.2019 as it does not suffer from any jurisdictional error.

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Accordingly, this writ petition stands dismissed.

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Parties to bear their own cost.

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Let the LCR be returned back.

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JUDGE

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Comparing Assistant

Malati Tumung v. Mobin Ali Dewan and 3 Ors.

Case brief

What is this about?

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Malati Tumung v. Mobin Ali Dewan and 3 Ors.

Case brief

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