Banamali Thakuria v. Manoj Kumar Agarwala

ORDER Date : 29.11.2024

Heard Mr. P.K. Deka, learned counsel for the petitioner.

¶2The order dated 02.09.2024, passed by the learned Civil Judge (Senior Division), Kamrup (Amingaon) in Misc. (J) Case No. 137/2024, arising out of Title Suit No. 69/2019 is challenged in this revision petition under Article 227 of the Constitution Page No.# 2/6 of India read with Section 115 of the C.P.C.

¶3Mr. Deka, learned counsel for the petitioner, submits that the respondent herein had instituted a title suit, being Title Suit No. 69/2019, for specific performance of contract and for permanent injunction before the learned Civil Judge (Senior Division), Kamrup (Amingaon). In the said title suit, the petitioner has entered appearance and filed written statement-cum-counter claim and in the said written statement some mistake has been committed by the earlier set of counsel and the same was detected when new counsel was engaged by the petitioner. Thereafter, a petition for amendment of the written statement-cum-counter claim was filed before the learned Trial Court. But, the learned Trial Court has dismissed the same on the ground of delay and also on the ground of filing objection by the plaintiff. But, in fact, no objection was filed by the plaintiff. Mr. Deka, further submits that the trial has not yet been commenced, and in view of the judgment of the Hon'ble Supreme Court in the case of Life Insurance Corporation of Indis vs. Sanjiv Builder Private Limited and Another, reported in AIR 22 SC 105, for determination of the real question of controversy, amendment has to be permitted and in the case in hand in order to determine the real petitioner of controversy amending of the written statement-cum-counter claim is very much necessary. Therefore, Mr. Deka has contended to allow the petition.

¶4Having heard the submission of Mr. Deka, learned counsel for the petitioner, I have carefully gone through the petition and the documents placed on record and also perused the impugned order dated 02.09.2024, and also perused the decision of the Hon'ble Supreme Court in the case of Sanjiv Builder (supra).

¶5It is to be noted here that in the said case, Hon'ble Supreme Court has held as under :-

¶70Our final conclusions may be summed up thus:

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(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negative.

(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "'shall", in the latter part of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of roceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

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(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material Page No.# 5/6 particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is Page No.# 6/6 required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi and Ors., 2022 SCC OnLine Del 1897): (AIROnline 2022 DEL 1797)."

¶6In the case in hand Mr. Deka, learned counsel for the petitioner has pointed out that while filing the written statement-cum-counter claim, the earlier set of counsel has committed some material mistake and in order to determine the real question of controversy, amendment of the written statement cum counter claim is very much necessary.

¶7Having considered the submission of Mr. Deka, learned counsel for the petitioner in the light of facts and circumstances on the record, I find sufficient merit in this petition and accordingly, the same stands allowed. The impugned order dated

02.09.2024, passed by the learned Civil Judge (Senior Division), Kamrup (Amingaon) in Misc. (J) Case No. 137/2024, arising out of Title Suit No. 69/2019, stands set aside and quashed. The learned Trial Court is directed to allow the amendment written statement cum counter claim filed by the petitioner and thereafter, to proceed and hear the matter in accordance with law.

¶8In view of above, this CRP stands disposed of at the motion stage itself.

JUDGE Comparing Assistant

Page No.# 1/6 GAHC010249402024 2024:GAU-AS:11953 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP/129/2024 BANAMALI THAKURIA S/O- SRI ABHAY THAKURIA, R/O- HOUSE NO. 14, KALI MANDIR PATH, DHIRENPARA, P.O. AND P.S. FATASIL AMBARI, DIST. KAMRUP(M), GUWAHATI, PIN- 781025. VERSUS MANOJ KUMAR AGARWALA S/O- LATE KISTURLAL AGARWALA, R/O- J.P. AGARWALA ROAD, BHARALUMUKH, P.O. AND P.S. BHARALUMUKH, DIST. KAMRUP(M), PIN- 781009, GUWAHATI, ASSAM Advocate for the Petitioner : MR. P K DEKA, MR. I H LASKAR,MR. P DAIMARY,MR. R. KARIM,MS. N M LONGKENG,J MEDHI Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN