1. Heard Mr. P.K.Kalita, the learned senior counsel appearing for the petitioner and Mr. M.K. Sharma, the learned counsel appearing on behalf of the
respondent.
2. This is an application under Article 227 of the Constitution of India challenging the order dated 06/12/2018 passed in Misc. (J) Case No. 509/2017
arising out of Title Suit No. 84/2011, insofar as the rejection of the application under Order VI Rule 17 of the Code of Civil Procedure, 1908 is
concerned.
3. The factual matrix for the purpose of disposal of the instant proceeding is that the plaintiff had filed a suit being Title Suit No. 84/2011 before the
Court of the Civil Judge No. 1, Kamrup(M) at Guwahati, which was subsequently endorsed to the Court of the Civil Judge No.2, Kamrup(M) at
Guwahati for disposal. In the said suit the plaintiff prayed for declaration of right, title and interest of the plaintiff and for confirmation of possession in
respect to the suit land; to declare all sale deeds, power of attorney and other related documents, which were produced and relied upon by the
defendant Nos. 1 & 2 as void ab-initio and not binding on the plaintiff; for recovery of possession and permanent injunction. The defendant Nos.1 & 2
separately filed their written statement both on law as well as on facts. However, the defendant No. 3 did not file any written statement. Subsequent
thereto, an application was filed under Order VI Rule 17 of the CPC on 12/07/2013 seeking certain amendment to the plaint. Vide an order passed by
the Court below, the said amendment was permitted and thereupon the plaintiff filed an amended plaint. To the said amended plaint a joint additional
written statement was filed by the defendant Nos. 1 & 2. Pursuant thereto, issues were framed and the plaintiff filed his evidence and the suit is at the
stage of cross-examination of the plaintiff’s witnesses.
4. At that stage, a composite application was filed both under Order VI Rule 17 and Order I Rule 10(2) of the CPC, whereby the petitioner, as
plaintiff sought for impleadment of Biopro Pharmaceuticals (P) Ltd. as the defendant No. 4 in the suit. By the said application, the plaintiff sought to
amend various paragraphs of the plaint as well as substitute the relief No. (ii) by giving specific details. The defendants filed their written objection
both on law and facts. It was the specific stand taken by the defendants in their written objection that the plaintiff has already changed two sets of
lawyers to conduct the suit and the plaintiff had already amended the plaint in detail through the second set of lawyers and as such the amendment
application should not be allowed. It was also the stand of the defendants that if the new facts are brought on record, it would change the nature and
character of the suit. However, a perusal of the written objection do not show in any manner that any objection was taken by the defendants as
regards suppression of the material facts. The Court below vide an order dated 15/11/2017 rejected the application on the ground that the trial had
commenced and the plaintiff did not show any reason that in spite of due diligence the plaintiff could not have amended the plaint prior to
commencement of trial. The Court below further held that the proposed amendment will introduce a totally new case diametrically inconsistent to the
one already pleaded in the plaint and thereby cause prejudice to the Defendants. On the other hand, insofar as the prayer for impleadment of Biopro
Pharmaceuticals (P) Ltd. as defendant No. 4 to the suit is concerned, the same was also rejected. Being aggrieved, the petitioner approached this
Court by filing an application under Article 227 of the Constitution of India, which was registered and numbered as CRP (I/O) No. 387/2017. This
Court found that the order passed by the Court below dated 15/11/2017 suffers from jurisdictional error and consequently directed the Court below to
de novo adjudicate the Misc. (J) Case No. 509/2017 i.e. to decide afresh the issue of impleadment as well as the amendment of the plaint. Pursuant
thereto, the Trial Court vide order dated 06/12/2018 rejected the amendment application on the ground that the petitioner was not duly diligent while
conducting the case and consequently in view of the proviso to Order VI Rule 17 of the CPC, the application was rejected. However, the Court below
vide the order impugned permitted the impleadment of Biopro Pharmaceuticals (P) Ltd. as a necessary party for proper adjudication of the dispute and
also imposed a cost of Rs. 1,000/- upon the plaintiff. Being aggrieved by the said order dated 06/12/2018, the petitioner is before this Court under
Article 227 of the Constitution of India. It is relevant to take note that there is no challenge to the order impugned insofar as the impleadment of
Biopro Pharmaceuticals (P) Ltd. as the Defendant No. 4 is concerned.
5. I have heard the learned senior counsel appearing for the petitioner as well as the respondent.
6. Mr. PK Kalita, the learned senior counsel appearing on behalf of the petitioner submits that the impugned order dated 06/12/2018 on the face of it,
clearly shows the total non-application of the mind by the Court below inasmuch as the impugned order do not show any reasons, except mechanically
applying the proviso to Order VI Rule 17 of the CPC. He further submits that on one hand the Court below by allowing the application under Order I
Rule 10 CPC puts the suit back to the stage of pleadings and on the other hand, rejected the application under Order VI Rule 17 of the CPC on the
ground of commencement of trial, which as per the learned senior counsel is the jurisdictional error committed by the Court below.
7. Mr. M.K. Sharma, the learned counsel appearing for the respondent submits that that the petition filed by the petitioner under Order VI Rule 17
CPC suffers from suppression of material facts inasmuch as on the earlier occasion when the amendment application was filed the same ground was
being taken. He further submits that the suppression of material facts can also be seen from the order dated 17/11/2017 itself that the defendants had
taken the certified copy of the sale deed and also exhibited as plaintiff’s evidence. But now they are trying to amend the pleadings by taking into
account that the new sets of counsel had advised them to amend the plaint. In that regard, the learned counsel Mr. MK Sharma has referred to the
judgment of the Supreme Court rendered in the case of Dalip Singh Vs. State of U.P. reported in (2010) 2 SCC 114 to canvass his argument that
when the party approaches the Court on the question of suppression of material facts he is not entitled to any benefit. He further submits that by the
amendment which has been sought to be done as by amending paragraph 4 of the plaint, the same would bring in new facts, which cannot be
permitted in an application by way of an amendment.
8. I have the learned counsel for the parties at length, perused the copy of the plaint, the written statement, the amended plaint, the additional written
statement, the application seeking amendment, the objection filed to the said application, the order dated 15/11/2017, the order passed by this Court on
10/08/2018 as well as the impugned order dated 06/12/2018.
9. First and foremost, I am of the opinion that the Court below had committed a jurisdictional error in rejecting the application under Order VI Rule 17
of the CPC on the ground that the trial had commenced and on the other hand allowing the application under Order I Rule 10 of the CPC thereby
allowing the impleadment of a party. It is relevant to note that when a party is impleaded in a suit, the suit would go back to the stage of pleadings and
the Code of Civil Procedure does not conceive of compartmentalization of a suit in respect to the existing defendants and the newly added
defendant(s). Under such circumstances once that application under Order I Rule 10(2) of the CPC was allowed, the question of dismissing the
application under Order VI Ruler 17 of the CPC on the ground that the trial of the suit had commenced does not arise in the facts and circumstances
of the case. In fact, the impugned order passed by the Trial Court suffers from complete non-application of the mind by the Trial Court.
10. The second aspect of the matter, which also needs to be taken note of is the submission made by the counsel appearing on behalf of the
respondent that there has been suppression of material facts insofar as the application filed under Order VI Rule 17 read with Order 1 Rule 10 of the
CPC is concerned. From a perusal of the impugned order, it does not show that the Trial Court had looked into that aspect of the matter and the
reason is apparent in as much as in the written objection filed to the application seeking amendment and addition of parties, there has been no objection
taken by the respondent as regards suppression of material facts. Under such circumstances, the question of permitting the said ground to be
developed in this proceedings, I am of the opinion the same does not arise. The third aspect is as to whether the amendment sought for would change
the nature and character of the suit and this aspect has arisen in view of the submission made by the learned counsel for the respondent to the effect
that the amendment sought in respect to paragraph 4 would bring new facts, which were not there in the existing paragraph 4 of the plaint.
11. The law as regards Order VI Rule 17 of the CPC i.e. amendment of the pleadings is clear that all amendment can be permitted which are
necessary for determining the real question in controversy. The said provision of Order VI Rule 17 CPC does not prohibit new facts being brought on
record. What it prohibits that the new fact, which would change the nature and character of the suit would not be permitted. In view of the same, the
contention of Mr.M.K. Kalita, the learned counsel appearing for the respondent is also rejected. Consequently, the application seeking amendment is
allowed by this Court but with a cost of Rs. 25,000/- which the petitioner shall deposit before the Trial Court on 17/12/2021 when the parties herein
shall appear before the Trial Court.
12. At this stage it is relevant to take note that this Court vide an order dated 18/1/2019 stayed further proceedings before the Trial Court in the suit.
The record further reflects that the original plaintiff expired on 5/6/2019 and thereafter vide an order dated 28/8/2019, the legal representatives of the
original plaintiff/petitioner herein were substituted in the instant proceedings. Again during the pendency of the instant proceedings the wife of the
original plaintiff/petitioner herein also expired and this Court had vide order dated 25/10/2021 struck off her name from the records of the present
case. It is also relevant herein to note that in view of the stay of the further proceedings of Title Suit No. 84/2011, no steps could have been taken by
the present petitioner herein who is the surviving legal representative of the original plaintiff, before the Trial Court and consequently taking into
consideration that the original plaintiff expired on 5/6/2019, the suit had abated in the meantime. Taking into consideration the fact that the present
petitioner has been already substituted in the instant proceedings, the same shall be deemed to be a substitution within the meaning of Order XXII Rule
3 of the Code of Civil Procedure, 1908 for the purpose of the suit and the Court below is directed to instruct the Bench Assistant to make necessary
changes in the cause title of the plaint accordingly. The present petitioner herein who by virtue of this order has been substituted in the suit shall file
the amended plaint on 17/12/2021 as fixed herein above.
13. With the above observations, the instant petition stands allowed.
