Abdul Kader Paramanik Vs on the Death of Abdul Rashid Akand His Legal Heirs and Ors.

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GAHC010000432025

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2025:GAU-AS:2531

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

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Case No. : CRP(IO)/15/2025

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ABDUL KADER PARAMANIK

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S/O LATE ISMAIL PARAMANIK, R/O VILL- NICHUKA, MOUZA-D.C. BOUSHI, DIST- BARPETA, ASSAM

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VERSUS

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ON THE DEATH OF ABDUL RASHID AKAND HIS LEGAL HEIRS AND ORS NAMELY

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1.1:JAHILA KHATUN

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W/O LATE ABDUL RASHID AKAND R/O VILL- KHAIRABARI MOUZA - GOBARDHANA DIST-BARPETA ASSAM

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1.2:MALIKA KHATUN D/O LATE ABDUL RASHID AKAND R/O VILL- KHAIRABARI MOUZA - GOBARDHANA DIST-BARPETA ASSAM

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1.3:JALILUDDIN AKAND S/O LATE ABDUL RASHID AKAND R/O VILL- KHAIRABARI MOUZA - GOBARDHANA DIST-BARPETA ASSAM

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1.4:JAHURUDDIN AKAND S/O LATE ABDUL RASHID AKAND

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R/O VILL- KHAIRABARI MOUZA - GOBARDHANA DIST-BARPETA ASSAM

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1.5:BULBUL AKAND (MINOR) S/O LATE ABDUL RASHID AKAND R/O VILL- KHAIRABARI MOUZA - GOBARDHANA DIST-BARPETA ASSAM

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1.6:RAHUL AKAND (MINOR) S/O LATE ABDUL RASHID AKAND R/O VILL- KHAIRABARI MOUZA - GOBARDHANA DIST-BARPETA ASSAM 2:ABDUL SAMAD AKAND S/O LATE ABDUL KARIM AKAND R/O VILL- KHAIRABARI MOUZA - GOBARDHANA DIST-BARPETA ASSAM

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3:AZAD ALI AKAND S/O LATE ABDUL KARIM AKAND R/O VILL- KHAIRABARI MOUZA - GOBARDHANA DIST-BARPETA ASSAM 4:NOWSHAD ALI AKAND S/O LATE ABDUL KARIM AKAND R/O VILL- KHAIRABARI MOUZA - GOBARDHANA DIST-BARPETA ASSAM 5:PANCHAB ALI AKAND S/O LATE ABDUL KARIM AKAND R/O VILL- KHAIRABARI MOUZA - GOBARDHANA DIST-BARPETA ASSA

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For the Petitioner(s) : Mr. A. Ikbal, Advocate For the Respondent(s) : Mr. M. Ahmed, Advocate Date of Hearing : 07.03.2025 Date of Judgment : 07.03.2025

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. A. Ikbal, the learned counsel appearing on behalf of the petitioner and Mr. M. Ahmed, the learned counsel appearing on behalf of the respondent.

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This is an application under Article 227 of the Constitution challenging the order dated 16.11.2024 passed in Misc. (J) Case No.299/2024 arising out of Title Suit No.89/2011 whereby the learned Court of the Civil Judge (Junior Division) No.1 at Barpeta (hereinafter referred to as ‘the learned Court’) had rejected the application filed by the petitioner herein under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short ‘the Code’).

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It is relevant to take note of that the respondents herein as plaintiffs filed a suit seeking for declaration that the plaintiffs and the proforma defendants have joint right, title and interest over the Schedule-A land of the plaint; for declaration that the plaintiffs have right, title and interest over Schedule-B land out of the Schedule-A land of the plaint; for declaration that the defendants have no manner of right, title and interest over the Schedule-

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C land out of Schedule-B land and that the main defendants are mere trespassers; for declaration that the main defendants are liable to be evicted from the Schedule-C land removing all structures there from and deliver khas possession thereof in favour of the plaintiffs as well as for permanent injunction. The said suit was registered and numbered as Title Suit No. 89/2011. It is pertinent to mention that the land described in Schedule-C to the plaint is a plot of land admeasuring 3 Bighas 0 Kathas 4 Lechas from which land, the plaintiffs sought recovery of possession.

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Pursuant to the filing of the suit, the defendant No.1/the petitioner herein filed his written statement cum counter claim. In the written statement, the case of the plaintiffs was denied and the defendant No.1 made a counter claim whereby the defendant not only sought for dismissal of the suit with costs but also claimed that he had right, title and interest over the land described in the Schedule to the said written statement; for confirmation of possession over the said land; for declaration that an exparte decree dated 12.03.2007 passed by the learned Munsiff No.1, Barpeta in T.S. No.248/06 was obtained fraudulently and therefore a nullity and for perpetual injunction. It is relevant to take note of that the Schedule to the said counter claim is a plot of land admeasuring 3 Bighas 2 Kathas 10 Lechas comprised in Dag No. 576 (old)/253 (new) and 577 (old)/ 252 (new) of K. P. Patta No. 85 (old)/99 and 100 (new) of village Khoirabari under Gobardhana Mouza.

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A further perusal of the said counter claim would show that the defendant No.1 claimed that he was in possession of the schedule land described in the counter claim and as such, sought for confirmation of

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possession. It is the further case of the defendant No.1 who is the petitioner herein that on 22.12.2022 at around 12 AM, the plaintiffs dispossessed the defendant No.1 from the Schedule land described in the counter claim and as such, sought amendment to the written statement cum counter claim by filing an application under Order VI Rule 17 of the Code on 27.08.2024. The said application was registered and numbered as Misc. (J) Case No.299/2024. Objections were filed to the said application. The learned Trial Court rejected the said application vide the impugned order and it is under such circumstances, the present petition has been filed.

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I have heard the learned counsels appearing on behalf of the parties and given my anxious consideration the materials on record.

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From a perusal of the impugned order, it transpires that the trial began on 06.08.2016 and the learned Trial Court had taken note of that the alleged incident of dispossession of the defendant No.1 happened in the year 2022. However, on the ground that the defendant No.1 did not file the application for a period of two years as such the application so filed by the defendant No.1 seeking amendment of the counter claim was rejected.

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This Court has duly taken note of the case of the plaintiffs as well as the defendant No.1. It is the case of the plaintiffs that they had sought for recovery of possession of the land described in Schedule-C to the plaint from the defendants. It further appears from the counter claim filed by the defendant No.1 that he sought for confirmation of possession over the land described in the claim to the counter claim which appears to be the same land.

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The case of the defendant No.1 is specific that he had been dispossessed during the pendency of the suit. It is the opinion of this Court that if this amendment so sought for is not allowed, the counter claim so filed seeking declaration and now the admission that the defendant No.1 is no longer in possession as can be discerned from the application filed seeking amendment of the written statement cum counter claim, the said counter claim under no circumstances can be decreed in view of the proviso to Section 34 of the Specific Relief Act, 1963.

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This Court also takes note of that the counter claim is a cross suit and is to be treated as a plaint. It is the opinion of this Court that without the amendment, the matter of controversy insofar as the counter claim is concerned cannot be determined. Under such circumstances, it is the opinion of this Court that the amendment so sought for ought to have been allowed by the learned Trial Court by imposing costs.

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This Court further takes note of that there has been some delay in filing the application for amendment of the written statement cum counter claim inasmuch as the incident as alleged happened in the year 2022 and it was only in the year 2024, the said amendment was made. This delay on the part of the defendant though may not attract strictly the proviso to Order VI Rule 17 of the Code taking into account that the alleged subsequent events happened after the trial had already begun, but on account of the laches on the part of the defendant No.1, unnecessary judicial time have been wasted.

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Considering the above, this Court is of the opinion that some cost has to be imposed upon the defendant No.1. Accordingly, this Court allows the application seeking amendment of the written statement cum counter claim

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which has been registered as Misc. (J) Case No.299/2024 subject to imposition of cost of Rs.25,000/- which is being imposed upon the petitioner/the defendant No.1.

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This Court further directs the defendant No.1 to file the amended written statement cum counter claim on 24.03.2025 before the learned Trial Court and also deposit the amount of Rs.25,000/- so imposed. It is made clear that the deposit of Rs.25,000/- is a condition precedent for acceptance of the amended written statement cum counter claim.

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Further to that, if the amended written statement cum counter claim is not filed on 24.03.2025, the consequences of Order VI Rule 18 of the Code would ensue. This Court further observes that upon filing of the said amended written statement cum counter claim, the plaintiffs be given the opportunity to file additional written statement before the learned Trial Court.

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Further to that, the plaintiffs are given the liberty to file an application before the learned Trial Court for the purpose of release of the said amount of costs so directed to be deposited hereinabove and upon such application being filed, the learned Trial Court shall pass appropriate orders.

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With above observations and directions, the instant petition stands disposed of.

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JUDGE

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Comparing Assistant

Abdul Kader Paramanik v. on the Death of Abdul Rashid Akand His Legal Heirs and Ors.

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Abdul Kader Paramanik v. on the Death of Abdul Rashid Akand His Legal Heirs and Ors.

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