THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) CRP 94 of 2017

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1 THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) CRP 94 of 2017 ATOWAR RAHMAN KALACHAN SHEIKH & 2 ORS. -Versus-..Petitioner..Respondents BEFORE HON BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners Advocates for the Respondents : Mr. J. Ahmed, Mr. A. Razzaque, : Ms. M. Ahmed. Mr. A. Hoque. : Mr. A. Ali, Mr. H.N. Islam, : Ms. F.Y. Hussain. Date of hearing : Date of judgment and order : JUDGMENT AND ORDER (CAV) Heard Mr. J. Ahmed, the learned counsel appearing for the petitioner- plaintiff and Mr. R. Ali, the learned counsel appearing for the respondents- Principal Defendants. 2) By filing this application under Article 227 of the Constitution of India, the petitioner has assailed the order dated passed by the learned Munsiff No.2, Barpeta, in Title Suit No. 180/2013, by which the prayer for amendment of the plaint was rejected. Owing to the nature of dispute raised herein, it is deemed fit to dispose of this application at the admission stage. 3) It is not deemed necessary to burden this order with the pleadings of the parties. It would suffice to mention that in the suit, the hearing had commenced and the petitioner- plaintiff had filed the evidence- on- affidavit of his witnesses and the case CRP 94/2017 Page 1 of 5

2 was fixed for cross examination of those witnesses. At that stage, the petitioner- plaintiff filed a petition under the provisions of Order VI Rule 17 of the Civil Procedure Code (CPC for short), to amend the plaint, which if allowed, would have the effect of altering the area of land falling in the share of 5 (five) proforma defendants in the suit. 4) It is submitted by the learned counsel for the petitioner that in paragraph 3 of the petition for amendment, which was numbered as petition No. 938/16, it was projected that at the time of filing of the plaint, the petitioner- plaintiff had no knowledge about the existence of registered sale deed No dated , by virtue of which Jayghan Nessa, the mother of the proforma defendants No. 1 to 4 had purchased land measuring 1 bigha- 3 katha- 15 lessas from one of the two co-pattadars, namely, Kashem Ali and took over possession of the same. The said land was mutated in the name of the said purchaser by order dated , passed by the Sub- Deputy Commissioner. It is submitted that in view of the said purchase of land, after the death of Jayghan Nessa, instead of the area of land mentioned in the plaint, the proforma defendants No.1 would, on adding the area of land purchased by Registered Sale Deed No. 5108, become entitled to 2 bigha- 1 katha 13.3 lessas land and the proforma defendants No. 2, 3 and 4 would become entitled to 2 katha lessas land each. 5) It is submitted that apart from correcting the measurement of land to which the Proforma Defendants No.1 to 4 would be entitled to, no other amendment was sought for. It is also submitted that the amendment, if allowed, would neither alter the relief prayed for in the plaint, nor it would affect any change in the cause of action for the suit, rather it would enable the court to arrive at a just and fair decision. The learned counsel for the petitioner has relied on the following case citations (i) State of Madhya Pradesh V. Union of India & Another, (2011) 12 SCC 268; (ii) Mahila Ramkali Devi &Ors. V. Nandram (Dead) through LRs, &Ors., (2015) 13 SCC 132; (iii) Pawan Kumar Pathak V. Mohan Prasad, (2016) 12 SCC ) Per contra, the learned counsel appearing for the respondents has submitted that the present revision was not maintainable for non- joinder of the necessary parties, who were arrayed as proforma defendants in the suit, and whose share in land would be affected if the prayer made herein is allowed. CRP 94/2017 Page 2 of 5

3 7) The learned counsel argued in support of the impugned order. It is submitted that the petition for amendment did not contain even the elementary pleading about the date on which the petitioner- plaintiff got knowledge of the said sale deed No It is also submitted that the petitioner had projected a false case because the petitioner- plaintiff had purchased his land from the proforma defendants vide Registered Sale Deed No. 5/11 dated However, prior to that on , the land purchased by Jayghan Nessa was duly mutated in her name. Hence, it is impossible to believe that the petitioner- plaintiff had purchased the land without knowing about the various pattadars of the land. It is submitted that the averment about the current knowledge of the sale deed No is a false story made up by the petitioner- plaintiff to fill up the lacuna. It is submitted that the petitioner- plaintiff has not prayed for any relief against the proforma defendants and, as such, the amendment, as prayed for and if allowed would alter only the measurement of land to which the proforma defendants No. 1 to 4 are entitled to, but it would not help to prove the case of the petitioner- plaintiff. 8) Having perused the materials on record, the argument advanced by the learned counsel for the respondents in respect of non- joinder of proforma defendants in this revision appears to be correct. It is seen that notwithstanding that the said proforma defendants did not contest the suit, but nonetheless, they were parties in the suit. But if this court allows the present application, then it would have the effect of amending the area of land to which the individual proforma defendants are entitled to in their absence. 9) It also appears that if no relief is sought for in respect of the area of land which would fall in the share of each proforma defendant, there is no way that the share of land which the proforma defendants are entitled to hold can be the issue framed in the suit. In this regard, it would be appropriate to quote the provisions of Order XVIII Rule 2(1) CPC, which reads as follows:- "Order XVIII Rule 2. Statement and production of evidence. - (1) On the day fixed for hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. CRP 94/2017 Page 3 of 5

4 10) Therefore, in the opinion of this court, the trial court is not concerned about the area of land falling in the share of the proforma defendants. It is not the projected case of the petitioner that the area of land falling in the share of the proforma defendants would have any bearing on the land sold by them to the petitioner- plaintiff. Had that been the plea, then perhaps a arguable case for allowing amendment could have been set up. 11) In the present case in hand, any alteration to the area of land to which the proforma defendants are entitled to would be a cause of concern for the said proforma defendants, who have not been impleaded in the present application. Moreover, the area of land held by the proforma defendant, being not a matter in issue or in controversy, in the opinion of this court, no prima facie case for allowing the amendment as prayed for is made out because even if the proposed amendment is allowed, it would not help the learned trial court to arrive at a just and fair decision. Hence, the present case has facts which are totally dissimilar to the facts involved in the cited cases of (i) State of Madhya Pradesh V. Union of India & Another, (2011) 12 SCC 268; (ii) Mahila Ramkali Devi &Ors. V. Nandram (Dead) through LRs, &Ors., (2015) 13 SCC 132; (iii) Pawan Kumar Pathak V. Mohan Prasad, (2016) 12 SCC 672.On the perusal of these three cases, it does not appear that in any of the case, an amendment was allowed on matters that do not involve the real issues in controversy. Hence, it is not deemed fit to burden this order with excerpts from the said three case citations. 12) However, the learned counsel for the petitioner had strongly relied on the case of Mahila Ramkali Devi &Ors. (supra) and, as such, this court proposes to address the said case to be fair to the learned counsel for the petitioner, who has painstakingly taken this court to the various paragraphs of the said case. BY relying on the said case, it was strenuously submitted that in the said case, an amendment was allowed after 40 years from the date of institution of the suit. Having perused the said case, it appears that the issue involved in the said case was that as per the law prevailing at the time when the suit was instituted, the right of a land-owner (bhumiswami) to transfer his land by way of a will was not recognized by law when the land was transferred by way of will dated and under the said background, the plaintiff had prayed for amendment to add the name of minor sons and for alternative relief of succession dehors the will, which was ultimately allowed by the Hon ble Apex Court. Thus, the CRP 94/2017 Page 4 of 5

5 amendment was allowed in respect of the issue in controversy, which is not the present case in hand, where by way of amendment, the area of land which the proforma defendant is entitled to hold is sought to be amended, which is not the issue in controversy. 13) To sum up, this court is not inclined to interfere with the impugned order on two counts, viz., (i) the present application is hit by the principles of non- joinder of proforma defendants in this application; and (ii) the amendment, sought for, are not the real issues in controversy and, as such, it would not assist the learned trial court to arrive at a just and proper decision. Hence, on the basis of discussion above, this court does not find any ground to interfere with the trial court order impugned herein. Resultantly, this application is dismissed. The parties are left to bear their own cost. 14) The parties are directed to appear before the learned Court of Munsiff No.2, Barpeta, on without any further notice for appearance and seek further instructions from the said learned court. JUDGE Mkumar. CRP 94/2017 Page 5 of 5