Tulab Rabha and Anr v. Anupam Bora

PageoNo.#o1/3 GAHC010220522019 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP(IO)/298/2019o TULABoRABHAoANDoANR.o S/O.oLT.oPAMEIoRABHA,oR/O-oKAHILIPARAoROAD,oJATIA,oP.S.-oDISPUR,o GUWAHATI-6,oDIST.oKAMRUP(M) 2:oSULABoRABHA oS/O.oLT.oPAMEIoRABHA oR/O-oKAHILIPARAoROAD oJATIA oP.S.-oDISPUR oGUWAHATI-6 oDIST.oKAMRUP(Mo VERSUSo ANUPAMoBORAo S/O-oLT.oNARENDRAoNATHoBORA,oR/O-oHOUSEoNO.o36,oZOO-NARENGIo ROAD,oP.S.-oDISPUR,oGUWAHATI-6,oDIST-oKAMRUP(M). AdvocateoforotheoPetitionerooooo:oMRoBoCoTALUKDARo AdvocateoforotheoRespondento:oMR.oDoBARUAHoo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo ::kBEFOREk::k HON'BLEkMR.kJUSTICEkPARTHIVJYOTIkSAIKIA kOkkkRkkkDkkkEkkkR o

02.06.2023 o Heard the learned counsel Mr. B.C. Talukdar appearing for the petitioners. Also heard Mr. D. Baruah, learned counsel appearing for the Page No.# 2/3 respondent.

¶2This is an application under Article 227 of the Constitution of India challenging the order dated 13.08.2019 passed by the learned Civil Judge No.1, Guwahati in T.S. 41 of 2011.

¶3The petitioners are the defendants in the suit before the trial court. After the case was posted for cross-examination of the plaintiffs' witnesses, the present petitioners being defendants, filed a petition under Order 6 Rule 17 of the CPC. The trial court held that the petitioners failed to show as to how the proposed amendment was left out to be made earlier nor the petitioners could show any reason that the proposed amendment became necessary because of certain developments.

¶4I have considered the submissions made by the learned counsels of both sides.

¶5At this stage, a brief visit to order 6 Rule 17 would be fruitful. Order 6 Rule 17 of the Code of the Civil Procedure reads as under: "17. Amendment of pleadings. – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

¶6In the case in hand, the trial court has held that the petitioners failed Page No.# 3/3 to satisfy the court that in spite of due diligence, the petitioners could not have raised the matter before commencement of trial.

¶7Here, in this case, the said satisfaction of the trial court is important. We are dealing with a petition under Article 227 of the Constitution of India. The power under Article 227 of the Constitution is not an appellate power rather it is a supervisory power. Under Article 227 of the Constitution of India the High Court is to see as to whether the court below has acted within the limits of law.

¶8I find that the court below has acted within the limit prescribed by law. The petitioners failed to satisfy the court that in spite of due diligence, he could not have raised the matter before commencement of the trial. I am of the opinion that the learned trial court has correctly refused the amendment of the written statement.

¶9For the aforesaid reasons, the present revision petition is found to be devoid of merit and stands dismissed accordingly.

JUDGE Comparing Assistant