Binapani Das v. Gajendra Nath Kalita and 9 Ors

ORDER

18.03.2024

This is an application under Section 115 of the Code of Civil Procedure, 1908, (for short, the Code) challenging the order dated 23.09.2016 passed by the Page No.# 3/4 learned Munsiff No.2 at Guwahati in Misc.(J) Case No.185/2015 arising out of Title Suit No.511/2010. By the impugned order dated 23.09.2016, the application for amendment of the plaint was rejected.

¶2This Court taking into account the amendment to the Code of Civil Procedure, 1908 by the amending Act of 2002 is of the opinion that the instant application is not maintainable under Section 115 of the Code. Be that as it may, for the interest of justice, the instant application is converted to a proceeding under Article 227 of the Constitution.

¶3This Court has duly taken note of the impugned order dated 23.09.2016 passed by the learned Trial Court whereby the application filed by the petitioner/plaintiff was rejected. A perusal of the impugned order categorically shows that the learned Trial Court erroneously have dealt with the merits of the amendment sought for and not what was required to be taken note of in terms of the provisions of Order VI Rule 17 of the Code.

¶4This Court has also taken note of the application filed under Order VI Rule 17 of the Code and from a perusal thereof, it reveals that the amendment so sought for are necessary for the purpose of effective adjudication of the suit. Further to that, the said amendments under no circumstances would change the nature and character of the suit property. Consequently, as the learned Trial Court did not consider the said aspect of the matter, the impugned order dated

23.09.2016 passed by the learned Trial Court is set aside and quashed and the application seeking amendment of the plaint is allowed. Page No.# 4/4

¶5The petitioner/plaintiffs are directed to file the amended plaint by

02.04.2024 before the learned Trial Court. The stay order dated 22.12.2016 passed by this Court stands vacated in view of the above directions.

¶6The parties herein are directed to appear before the learned Trial Court on

02.04.2024 as abovementioned.

¶7With the above, the petition stands disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010033622016 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP/473/2016o BINAPANIoDASo W/O.oLT.oKULENDUoKR.oDAS,oSILPHUKHURI,oGUWAHATI-03,oKAMRUPM,o ASSAM. VERSUSo GAJENDRAoNATHoKALITAoando9oORS.o S/O.oLT.oRUPoRAMoKALITA,oUDAYANoBIHAR,oOILoNARENGI,oP.S.o NOONMATI,oGUWAHATI-26,oKAMRUPM. 2:SMToMINUoDASo@oDIPALIoDAS oW/O.oLT.oDR.oSUBHENDUoKRoDAS 3:SMToBHARATIoDAS o 4:SRIoMANASoDAS o 5:SRIoBUBLUoDAS oALLoAREoSONSoANDoDAUGHTERoOFoLT.oDR.oSUBHENDUoKRoDASoANDo RESIDENToOFoKARNACHAL oSILPUKHURI oGUWAHATI-03. 6:SMT.oNILIMAoDAS Page No.# 2/4 W/O. LT. JOGENDRA KUMAR DAS 7:SRI DEBENDRA KR DAS S/O. LT. JOGENDRA KR DAS. 8:SRI KUSUM KR DAS 9:SRI SANJIT KR DAS BOTH ARE SONS OF LT. KULENDU KR DAS R/O. KARNACHAL SILPUKHURI GUWAHATI-03. 10:SRI KAMALESWAR BARMAN S/O. LT. MONA BARMAN R/O. C/O. UTTAM BARMAN NEAR MARIA SCHOOL BIRKUCHI P.O. NARENGI GUWAHATI-26 Advocate for the Petitioner : MR.H DAS Advocate for the Respondent : MR.A CHOUDHURYR- 1and10R-1 BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH