Rati Ram Boro vs Sunil Boro And 7 Ors.

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GAHC010160482024

2026:GAU-AS:12929
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/297/2024
RATI RAM BORO
S/O- LATE GOPI NATH BORO, R/O- VILL.- GHORAMARA, MOUZA- BIJNI,
P.S. SALBARI, DIST. BAKSA, ASSAM, PIN- 781318.
VERSUS
SUNIL BORO AND 7 ORS.
S/O- LATE DHEMA BORO, R/O- VILL.- GHORAMARA, MOUZA- BIJNI, P.S.
SALBARI, DIST. BAKSA, ASSAM, PIN- 781301.
2:HAREN KHERKETARY
S/O- LATE RATNESWAR KHERKETARY
R/O- VILL.- GHORAMARA
MOUZA- BIJNI
P.S. SALBARI
DIST. BAKSA
ASSAM
PIN- 781301.
3:ON THE DEATH OF BIBI BALA OJAH
THE ORIGINAL RESPONDENT NO. 3
HER LEGAL REPRESENTATIVES
NAMELY
3.1:SUBAL OJAH
S/O BIBI BALA OJAH
R/O NEAR SBI
BARPETA BRANCH
P.S AND DISTRICT BARPETA
ASSAM
PIN- 781301

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3.2:DIPU OJAH
S/O BIBI BALA OJAH
R/O NEAR SBI
BARPETA BRANCH
P.S AND DISTRICT BARPETA
ASSAM
PIN- 781301
3.3:ANIMA OJAH
D/O BIBI BALA OJAH
R/O NEAR SBI
BARPETA BRANCH
P.S AND DISTRICT BARPETA
ASSAM
PIN- 781301
3.4:USHA OJAH
D/O BIBI BALA OJAH
R/O NEAR SBI
BARPETA BRANCH
P.S AND DISTRICT BARPETA
ASSAM
PIN- 781301
3.5:FUL KUMARI OJAH
D/O BIBI BALA OJAH
R/O NEAR SBI
BARPETA BRANCH
P.S AND DISTRICT BARPETA
ASSAM
PIN- 781301
3.6:SABITA OJAH
D/O BIBI BALA OJAH
R/O NEAR SBI
BARPETA BRANCH
P.S AND DISTRICT BARPETA
ASSAM
PIN- 78130


BEFORE
THE HON’BLE MR JUSTICE MRIDUL KUMAR KALITA

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For the Petitioner : Mr. S Das, Advocate

For the State respondents : Mr. AR Sikdar, Advocate for the respondent Nos. 1 and 2.
Mr. N Alam, Advocate for the respondent Nos. 3(a) to 3(f).


Date of hearing :19.08.2026
Date of Judgment &Order :07.09.2026


JUDGMENT &ORDER


1. Heard Mr. S Das, the learned counsel for the petitioner. Also heard Mr.
A R Sikdar, the learned counsel for the respondent Nos. 1 and 2 and Mr. N
Alam, learned counsel for the respondent Nos. 3(a) to 3(f).
2. This application under Article 227 of the Constitution of India has been
filed by the petitioner, Shri Rati Ram Boro, impugning the order dated
15.07.2024 passed by the Court of learned, Civil Judge, Senior Division,
Baksa in Misc. (J) Case No. 02/2024 in Title Suit No. 13/2022, whereby
the prayer for amendment of the Plaint by the present petitioner was
rejected.
3. The facts relevant for consideration of the instant CRP (IO), in brief, are
that the present petitioner, as plaintiff, had instituted a suit before the
Court of learned Civil Judge, Senior Division, Baksa, praying for declaration
of his right, title, and interest on the land mentioned in the schedule of
the plaint, as well as for recovery of khas possession of the said land, for
permanent injunction, cancellation of mutation in respect of defendant
Nos. 1 and 2 and other consequential reliefs.

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4. In the plaint filed by the plaintiff/ present petitioner, before the trial
court in the aforesaid suit, it was pleaded by him that he is the owner of a
plot of land measuring 14 Bigha 1 Katha, 19Lecha, fully described in
Schedule A to the said plaint.
5. It is further pleaded therein that on 26.07.2021, the defendant Nos. 1
and 2 (present respondent Nos. 1 and 2) informed the plaintiff that they
have purchased 4 Bigha 3 Katha and 10Lecha of land from the defendant
No. 3 by executing registered Sale Deed No. 2367/1996.It was further
pleaded therein that after the death of Ramesh Chandra Ojha, his wife
Bibi Bala Ojha’s name was mutated in respect of the aforesaid land and it
is she who executed the sale deed in favour of defendant Nos. 1 and 2.
6. The said suit was registered as Title Suit No. 13/2022. In the said suit,
the defendant Nos. 1 and 2 appeared and filed their written statement on
28.11.2022, whereas the suit proceeded ex-parte against defendant No. 3.
In the written statement, the defendant Nos. 1 and 2 took the plea that
the present petitioner had sold 9 Bigha 16Lechaof land out of the suit land
to one Ramesh Chandra Ojha by executing a Sale Deed on 03.06.1969
bearing Deed No. 4623/69 as well as the wife of Ramesh Chandra Ojha,
namely Bibi Bala Ojha sold 2 Bighas of land to the defendant No. 1.
7. After filing of the written statement, the suit proceeded and the
plaintiff's witnesses filed their evidence on affidavit and 29.06.2023 as well
as 14.11.2023 was fixed for cross-examination of plaintiff's witnesses.
Thereafter, on 13.02.2024, the present petitioner had filed an application
under Order 6, Rule 17 of the Code of Civil Procedure, 1908, praying for
amendment of the plaint by incorporating certain new prayers and also

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seeking amendment of some other inadvertent mistakes, which had crept
in the plaint. However, by order dated 15.07.2022 passed in Misc.(J) Case
No. 02/2024 in Title Suit No. 13/2023, the trial court had rejected the
prayer for amendment. The said order of rejection has been impugned in
this instant CRP (IO).
8. Mr. S Das, the learned counsel for the petitioner has submitted that the
trial court had erred in rejecting the prayer for amendment of the plaint by
holding that there was lack of due diligence on the part of the present
petitioner in seeking amendment of the plaint so belatedly. He submits
that the sale deed which is purported to be executed by the present
petitioner in favour of Ramesh Chandra Ojha is a forged sale deed, and
the petitioner was unaware of its existence. He submits that it is only
when the defendant No. 1 and 2 had filed their written statement on
28.11.2022, wherein it was for the first time pleaded that the present
petitioner had sold 9 Bigha 16 Lecha of land to the Ramesh Chandra Ojha,
the petitioner for the first time came to know about the existence of the
forged sale deed. He further submits that since the defendants have
pleaded in the written statement that the present petitioner had already
sold 9 Bighas 16 Lechas of land to Ramesh Ch. Ojha, he was expecting
that the defendants would produce that document during the stage of
framing of issues and submission of documents of plaintiff's witness.
However, when same was not done, he applied for certified copies of the
Sale Deed No. 4623/69 on 23.11.2023 and the said certified copies were
furnished to him only on 07.12.2023 and as such, there was a delay in
filing of the petition for amendment of plaint.

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9. He further submits that the issue raised by the present petitioner
regarding genuineness of the Deed No. 4623/69 is required to be decided
for a just decision in the pending suit, which was filed by the present
petitioner. As such, he submits that the trial court has erred in disallowing
the amendment which was sought for by the present petitioner. He
submits that while considering an application under Order 6, Rule 17 of
the Court of Civil Procedure,1908, a liberal approach is to be adopted by
the courts, as held by the Apex Court in several of its judgments. He
submits that the object of Order 6, Rule 17 of the CPC is to prevent
multiplicity of the proceedings in relation to those disputes, which may be
settled in the single suit. He further submits that by allowing the said
amendment, the defendants, (present respondents) would not be
prejudiced in any manner as they would get ample opportunity to cross-
examine the, the witnesses of the plaintiff. He further submits that the
plaintiff's witnesses are yet to be cross-examined by the defendant's sides.
In his support, he has relied the following ruling:
i) Life Insurance Corporation of India vs Sanjeev Builders
Private Limited and Anr. reported in (2022) 16 SCC 1 .
10. On the other hand, Mr. A. R. Sikdar, the learned counsel for the
Respondent Nos. 1 and 2 has submitted that the Trial Court has correctly
held that there was lack of due diligence in seeking the amendment of the
plaint by the present petitioner. He further submits that as the trial has
already been commenced and the petitioners have failed to show that the
amendment could not have been sought for before commencement of
trial, in spite of due diligence,hence, the trial court has not erred in any

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manner in rejecting theprayer for amendment. He submits that it is
apparent from the pleadings made in the application under Order 6, Rule
17 by the present petitioner that they came to know about the existence
of Sale Deed No. 4623/69 on 28.11.2022 when the present Respondent
Nos. 1 and 2 had filed their written statement in the said suit. However, in
spite of that, they waited till 23.11.2023 for filing certified copy of the said
sale deed.He further submits that the application for seeking amendment
was also belatedly filed on 13.02.2024 i.e. more than one year, two
months of the date when the existence of Sale Deed No. 4623/69 came to
the notice of the present petitioner. He further submits that since the Sale
Deed No. 4623/69 was executed by the present petitioner in favour of the
original defendant No. 3, namely, Ramesh Chandra Ojha, the defendant
Nos. 1 and 2 were not supposed to have possession of the said sale deed,
therefore, the question of their submitting the said sale deed at this stage
of documents and issues does not appear. He, therefore, submits that the
trial court was correct in rejecting the prayer for amendment of the plaint,
which was belatedly made without due diligence on the part of the
present petitioner. In support of his submission, he has cited following
rulings.
i) Kailash Vs Nanhku and Others reported in (2005) 4 SCC
480 .
ii) Vidyabai and Ors. Vs Padmalatha and Another, reported in
(2009) 2 SCC 409 .
11. On the other hand, Mr. N. Alam, the learned counsel for respondent No.
1 has also submitted that the Trial Court has made no error in rejecting

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the prayer for amendment on the ground of lack of due diligence on the
part of the present petitioner. He submits that the respondent No. 3 has
not received any notice from the trial court, and the suit is proceeding ex-
parte against her. He further submits that the plea taken by the petitioner
that they were waiting till framing of issues and to see whether the
respondents submit the sale deed No. 4623/69 is not believable as
according to Order 8 Rule 1 of the Code of Civil Procedure, 1908, even the
defendants have to submit the documents on which they are relying along
with the written statement. He further submits that since the suit was
proceeding ex-parte against defendant No. 3 as well as the legal heirs of
defendant No. 3, the question of their submitting the said document does
not arise.
12. He further submits that apart from challenging the sale deed No.
4623/69, the present petitioner has also sought for some more
amendments like correcting the name from Mr. Ramesh Ojha to Ramesh
Chandra Ojha in the plaint. Similarly, names of father of the plaintiffs from
Gopi Boro to Gopinath Boro, as well as the boundaries of the suit land in
the scheduled given to the plaint. He further submits that another
amendment which was sought for was the incorporation of paragraph No.
4 B in the Plaint, namely the suit land falls within the Tribal Belt, therefore,
executed between a tribal and non-tribal is void ab initio. This fact was
known to the petitioner even prior to filing of the suit. However, no
clarification has been given why belated amendment was sought for
seeking incorporation of the aforesaid amendment. He, therefore,submits
that the trial court has correctly rejected the prayer for amendment made
by the present petitioner. In support of his submission, the learned

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counsel for respondent No. 3 has cited following rulings:
i) Pandit Malhari Mahale vs. Monika Pandit Mahale and
Others, reported in (2020) 11 SCC 549.
13. I have considered the submissions made by learned counsel for both
sides, and have gone through the materials available on record. I have
also gone through the rulings cited by the learned counsel for both sides
in support of their respective submissions.
14. In the case of “ Life Insurance Corporation of India vs. Sanjeev Builders
Private Limited and Another” (supra), which is cited by the learned counsel
for the petitioner in this case, the Supreme Court of India, while laying
down the general principles which should be followed when an application
under Order VI Rule 17 of the CPC may be allowed, has observed as
follows: -
“ 71. Our final conclusions may be summed up thus:
71.1. Order 2 Rule 2CPC 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 2 Rule
2CPC is, thus, misconceived and hence negatived.
71.2. 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 6 Rule 17CPC.
71.3. The prayer for amendment is to be allowed:

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71.3.1. If the amendment is required for effective and proper
adjudication of the controversy between the parties.
71.3.2. To avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment do 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).
71.4. A prayer for amendment is generally required to be allowed
unless:
71.4.1. 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.
71.4.2. The amendment changes the nature of the suit.
71.4.3. The prayer for amendment is mala fide, or
71.4.4. By the amendment, the other side loses a valid defence.
71.5. 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.
71.6. 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.
71.7. Where the amendment merely sought to introduce an
additional or a new approach without introducing a time-barred

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cause of action, the amendment is liable to be allowed even after
expiry of limitation.
71.8. Amendment may be justifiably allowed where it is intended to
rectify the absence of material particulars in the plaint.
71.9. 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.
71.10. 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.
71.11. 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 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 [Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC
OnLine Del 1897] .)

15. On perusal of the aforesaid guidelines, it appears that the Apex Court
has emphasized in taking a liberal approach while considering an

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application for amendment of pleadings under Order VI Rule 17 of the
Code of Civil Procedure, 1908. However, it also appears that it has
nowhere stated that the embargo provided for in the proviso to Order VI
Rule 17 CPC may be diluted. For taking a liberal approach in an application
under Order VI Rule 17 of the Code of Civil Procedure, 1908, the Court
has to first come to the conclusion that the embargo in the proviso to
Order VI Rule 17 is not attracted to the application for amendment of
pleading made by the applicant. This Court is of considered opinion that if
in a case where the trial has already commenced and there are materials
on record to indicate that in spite of due diligence the party could not
have raised the matter before commencement of trial, the Court may well
within its jurisdiction to allow such a prayer for amendment. However, if it
comes to a negative finding and there is apparent lack of due diligence on
the part of the applicant, the prayer for amendment shall not be allowed.
This is more so as the word "shall" has been used in the proviso to Order
VI Rule 17of the Code of Civil Procedure, 1908. Hence, if the Court comes
to a finding that the amendment sought for could have been prayed by
the applicant before the commencement of trial, and it is not a case where
in spite of due diligence such an amendment could not have been prayed
for, the Court may be well within its jurisdiction to reject the prayer for
amendment.
16. In the instant case, it appears from record that the written statement
was filed by the defendant Nos. 1 and 2 before the Trial Court on
28.11.2022, wherein they specifically took the plea that the petitioner had
sold the land measuring 9 Bigha 16 Lecha to one Ramesh Chandra Ojha.
However, it appears that the petitioner had applied for the certified copy

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of the sale deed No. 4623/69 after more than one year of the said date,
that is on 23.11.2023, and thereafter filed the application seeking
amendment of the plaint only on 13.02.2024. In the meanwhile, the Trial
Court had already framed the issues, and the evidence on affidavit of the
plaintiff's witnesses were submitted, and the matter was fixed for cross-
examination of PWs on 14.11.2023. The plea of the petitioner that he was
waiting for the defendants to submit the copy of the sale deed in the suit
is not acceptable, as along with the written statement filed by defendant
Nos. 1 and 2, no such copy was submitted, and the suit proceeded ex-
parte against defendant No. 3. As such, the ground stated by the
petitioner that he waited for more than one year after coming to know
about the sale of the said land in favour of Ramesh Chandra Ojha by him,
on the ground that he was expecting that the defendants would produce
the documents during the stage of framing of issues, clearly indicates that
there has been total lack of due diligence by the petitioner in seeking the
amendment which has been sought for in this case.
17. This court is of considered opinion that it is clearly not a case where,
had he acted diligently, he could not have sought for the amendment
before the commencement of trial in the above-mentioned title suit. As
discussed earlier, the embargo in the proviso to Order VI Rule 17 CPC is
an absolute embargo due to the use of the word "shall" in the same, and
if the Court comes to a conclusion that there was lack of due diligence in
seeking the amendment of the pleading by the applicant, it has no other
option but to reject such a prayer.
18. Under such circumstances, this Court does not find that the conclusion

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arrived at by the trial court in the impugned order to be a wrong
conclusion justifying any interference by this Court in the same in exercise
of its supervisory power under Article 227 of the Constitution of India.
19. In view of discussions made and reasons stated in the foregoing
paragraphs, this CRP(IO) is hereby dismissed.
20. The stay granted earlier on further proceedings of Title Suit No. 13/2022
is hereby vacated. The trial court shall proceed with the suit and bring it
to its logical conclusion at the earliest.
21. Let a copy of this judgment be sent to the trial court by the Registry.
22. The parties are left to bear their own costs.
JUDGE
Comparing Assistant
Nabajyot
i Haloi
Digitally signed
by Nabajyoti Haloi
Date: 2026.09.07
04:55:34 -07'00'