1 CRP(IO)/412/2023 Page 1 GAHC010251742023 2026:GAU-AS:7368 IN THE GAUHATI HIGH COURT HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) CRP(IO)/412/2023 Nareswar Deka, S/o-Late Lalit Deka, R/o- Vill.-Konwarpara, Mouza-Rangamati, P.O.-Mangaldai, P.S.- Mangaldai, Dist.-Darrang, Assam, Pin-784125. …..Petitioner -Versus- Mukut Kalita, S/o-Late Khargeswar Kalita, R/o- Vill.-Konwarpara, Mouza-Rangamati, P.O.-Mangaldai, P.S.- Mangaldai, Dist.-Darrang, Assam, Pin-784125. ……Respondent For Petitioner Mr. A.R. Shome, Advocate. For Respondent 1. Mr. D.Mazumder, Senior Advocate. 2. Mr. D.Mazumdar, Advocate. Date of Hearing : 30.01.2026. Date of Judgment : 25.05.2026. BEFORE 2 CRP(IO)/412/2023 Page 2 HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA JUDGMENT AND ORDER [1] Heard Mr. A. R. Shome, the learned counsel for the petitioner. Also heard Mr. D. Mazumder, the learned senior counsel, assisted by Mr. D. Mazumdar, the learned counsel for the respondent. [2] This application under Article 227 of the Constitution of India has been filed by the petitioner, namely, Sri Nareswar Deka, impugning the order dated 16.08.2023, passed by the Court of learned Civil Judge Darrang, Mangaldoi in Misc. (J) Case No.98/2022, arising out of Title Suit No. 01/2021, whereby, the prayer for amendment of plaint made by the present petitioner was rejected. [3] The facts relevant for consideration of the instant revision petition, in brief, are that the present petitioner, as plaintiff, has filed a Title Suit bearing No. 01/2021 before the Court of learned Civil Judge Darrang, Mangaldoi, praying for declaration of his right, title and interest over the suit land, as well as for eviction of the present respondent therefrom and recovery of khas possession. The relief of cancellation of agreement and permanent injunction against the present respondent has also been made therein. During the pendency of the suit, the present petitioner had filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908, 3 CRP(IO)/412/2023 Page 3 seeking amendment of the plaint on the ground that the applicant came to know from the present respondent that he has got the patta in the name of the present petitioner cancelled by the ADC Revenue. [4] It is further stated by the petitioner that on becoming apprehensive, when he enquired in the office of the Circle Officer, Mangaldai Revenue Circle regarding the matter, he came to know that by Order No. DRC-25/2020/35, dated 12.01.2021, of the Additional Deputy Commissioner and Order dated 27.01.2021, of the Circle Officer, Mangaldai Revenue Circle, he came to know that the periodic patta No. 214 of village Konwarpara, Mouza-Rangamati, which was in the name of the present petitioner, has been cancelled. Accordingly, he prayed for amendment of the plaint for including the said facts therein. [5] Mr. A. R. Shome, the learned counsel for the petitioner, has submitted that, after coming to know about the fact of cancellation of patta in the name of present petitioner, he issued notice under Section 80 of the Code of Civil Procedure, 1908, to the revenue authorities, however, no response was received from them. As such, the petitioner filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 for amendment of the plaint and impleading the government officials as party in the pending suit, so as to prevent multiplicity of suit. He submits that, since the fact of cancellation of patta came to the knowledge of the present 4 CRP(IO)/412/2023 Page 4 petitioner only after institution of the suit, the amendments sought for by the present petitioner ought to have been allowed by the trial court. [6] The learned counsel for the petitioner submits that, the patta in the name of present petitioner was illegally cancelled by the revenue authorities and as such, the amendments sought for by the present petitioner is necessary to decide the real controversy between the parties. He submits that, the amendments sought for shall not change the nature and character of the suit and it will only prevent multiplicity of the proceedings. Hence, the amendments ought to have been allowed. However, by not doing so, the trial court has failed to exercise the jurisdiction which was vested in it. [7] The learned counsel for the petitioner further submits that, the suit is presently pending at the stage of filing of evidence on affidavit by the present petitioner / plaintiff and he is yet to file his evidence on affidavit. Hence, he submits that the trial is also not yet commenced. He also submits that, even if the amendment which has been sought for is allowed, the respondent shall not suffer any prejudice, as he would get a chance to file additional written statement in response to the amendment made by the petitioner in his plaint. As such, he submits that, the impugned order is liable to be set aside and the amendment sought for by the petitioner may be allowed. [8] In support of his submission, the learned counsel for the petitioner has cited following rulings:- 5 CRP(IO)/412/2023 Page 5 i.“Baldev Singh and Ors. Vs. Manohar Singh and Anr.” reported in “AIR 2006 SC 2832;” ii. “Sanjida Choudhury And Ors. Vs. Kukoi Chetia And Ors.” reported in“(2023) 3 GLR 323;” iii. “Secretary to The Government of Nagaland And Anr. Vs. Lhousakhotuo Vumero And Anr.” reported in “(2026) 1GLR 504.” [9] On the other hand, Mr. D. Mazumder, the learned senior counsel, appearing for the respondent, has submitted that, the trial court had rightly rejected the prayer for amendment of the plaint considering the facts and circumstances of the case. He submits that, the petitioner had taken an advance amount of Rs.15,00,000/- (Rupees Fifteen Lakhs only) from the present respondent by executing an agreement to sell the suit land in favour of the present respondent. The possession of the suit land is, accordingly, with the present respondent. [10] He further submits that, the petitioner has suppressed material facts in his application under Order 6 Rule 17 of the Code of Civil Procedure, 1908. He submits that, the petitioner was well aware about the proceeding before the revenue authorities for cancellation of patta, as he was given notice of the said proceeding. However, he suppressed these facts from 6 CRP(IO)/412/2023 Page 6 the trial court in his application seeking amendment of the plaint. [11] The learned Senior Counsel for the respondent submits that, the bar under Order 6 Rule 17 of the Code of Civil Procedure, 1908 regarding allowing of the amendment once the trial commenced has been rightly considered by the trial court. [12] He submits that, in the instant case, issues were framed and the case is fixed at the stage of evidence of PWs. He submits that, it is a settled legal proposition that trial in a civil suit commences on framing of the issues. [13] The learned senior counsel for the respondent also submits that, in the proposed amendment, the relief is sought for against the revenue authorities and the cause of action is also different, i.e., the cancellation of patta. Hence, if the proposed amendment is allowed, it will change the nature and character of the pending suit between the parties. He, therefore, submits that, trial court has rightly rejected the prayer for amendment of the plaint. [14] The learned senior counsel for the respondent also submits that, since the petitioner was aware of the proceeding before the revenue authorities regarding cancellation of the patta, there was also lack of diligence on the part of the petitioner in seeking the proposed amendment and these aspects were rightly considered by the trial court while rejecting the prayer for amendment. Hence, he submits that, the present revision 7 CRP(IO)/412/2023 Page 7 petition filed by the applicant/petitioner is liable to be dismissed. [15] In support of his submission, learned senior counsel for the respondent has cited following rulings:- i. “Basavaraj Vs. Indira And Others” reported in “(2024) 3 SCC 705”. [16] I have considered the submissions made by learned counsel for both sides and have gone through the materials on record. I have also gone through the rulings cited by learned counsel for both sides in support of their respective submissions. [17] If we go through the impugned order of the trial court, by which the prayer for amendment of the plaint by the present petitioner was rejected, it appears that the trial court dismissed the prayer mainly for two reasons. Firstly, the trial court was of the opinion that the trial has already commenced and the petitioner failed to show that in spite of due diligence he could not have raised the matter before the commencement of trial, and secondly, that the proposed amendment will bring a new cause of action in the pending suit. [18] Rule 17 of Order 6 of the Code of Civil Procedure is quoted herein belowfor the sake of convenience. “17. Amendment of pleadings.—The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be 8 CRP(IO)/412/2023 Page 8 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.” [19] In the case of “Mohinder Kumar Mehra Vs. Roop Rani Mehra And Others,” reported in“(2018)2 SCC 132”, the Supreme Court of India, while considering the bar of amending the pleadings subsequent to commencement of trial, has observed as follows:- “14. By Amendment Act 46 of 1999, with a view to shortage litigation and speed of the trial of the civil suits, Rule 17 of Order 6 was omitted, which provision was restored by Amendment Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to a considerable extent. The object of newly inserted Rule 17 is to control filing of application for amending the pleading subsequent to commencement of trial. Not permitting amendment subsequent to commencement of the trial is with the object that when evidence is led on pleadings in a case, no new case be allowed to set up by amendments. The proviso, however, contains an exception by reserving right of the Court to grant amendment even after commencement of the trial, when it is shown that in spite of diligence, the said pleas could not be 9 CRP(IO)/412/2023 Page 9 taken earlier. The object for adding proviso is to curtail delay and expedite adjudication of the cases.” [20] Thus, if in a civil suit, trial has commenced, the bar provided in the proviso to Order 6 Rule 17 of the Code of Civil Procedure, 1908 would be applicable. However, there is a rider to the said fact, i.e., if the petitioner is able to show that in spite of due diligence, the pleas sought to be incorporated by way of amendment could not be taken earlier, the said bar is not applicable. Further, if the trial has not commenced, the bar provided in the proviso to Order 6 Rule 17 is also not applicable. [21] As to when the trial commences in a civil suit, the question was answered succinctly by the Apex Court in the case of “Mohinder Kumar Mehra Vs. Roop Rani Mehra And Others,” reported in “(2018)2SCC 132”, as follows:- “17 [Ed.: Para 17 corrected vide Official Corrigendum No. F.3/Ed.B.J./104/2017 dated 7-2-2018.] . Although Order 6 Rule 17 permits amendment in the pleadings “at any stage of the proceedings”, but a limitation has been engrafted by means of proviso to the effect that no application for amendment shall be allowed after the trial is commenced. Reserving the court's jurisdiction to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial. In a suit when trial commences? Order 18 CPC deals with “hearing of the 10 CRP(IO)/412/2023 Page 10 suit and examination of witnesses”. Issues are framed under Order 14. At the first hearing of the suit, the court after reading the plaint and written statement and after examination under Rule 1 of Order 14 is to frame issues. Order 15 deals with “disposal of the suit at the first hearing”, when it appears that the parties are not in issue of any question of law or a fact. After issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences. 18. This Court in Vidyabai v. Padmalatha [Vidyabai v. Padmalatha, (2009) 2 SCC 409 : (2009) 1 SCC (Civ) 563] held that filing of an affidavit in lieu of examination-in-chief of the witnesses amounts to commencement of proceedings. In para 11 of the judgment, the following has been held: (SCC p. 413) “11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to “commencement of proceeding”.” [22] Thus, from the observations of the Apex Court in the aforesaid judgment, it is clear that after issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the suit commences. It also appears that filing of an affidavit in lieu of examination chief of the witness would also amount to commencement of the 11 CRP(IO)/412/2023 Page 11 proceeding. In the instant case, however, it appears that though the issues have been framed and the case was fixed on six consecutive dates for filing of the examination-in-chief by the plaintiff, i.e., on 26.04.2022, 27.05.2022, 29.06.2022, 02.08.2022, 19.09.2022 and 06.12.2022, however, the petitioner instead of filing his evidence on affidavit on 06.12.2022 had filed the amendment petition on 06.12.2022. Thus, in the instant case, the petitioner has yet to file his evidence on affidavit, as such the trial cannot be said to have commenced within the meaning of the word as used in proviso to under Order 6 Rule 17 of the Code of Civil Procedure, 1908. [23] The purpose of not allowing the amendment of plaint subsequent to the commencement of trial, i.e., when the evidence is led on pleadings in a case, is that no new case is allowed to be set up by way of amendments, as same may be prejudicial to the other side. However, as in the instant case, strictly speaking, the evidence on affidavit by the plaintiff’s side is yet to be filed, therefore, for the purpose of deciding the question as to whether proviso to Order 6 Rule 17 of the Code of Civil Procedure, 1908 would be applicable or not, this court is of considered opinion that the trial may not be regarded as having been commenced in the instant case, therefore, said bar may not be applicable. [24] Further, all amendments are to be allowed, which, are necessary for determining the real question in controversy 12 CRP(IO)/412/2023 Page 12 provided it does not cause injustice or prejudice to the other side. This appears to be mandatory requirement as it is apparent from the use of word “shall” in the later part of Order 6 Rule 17 of the Code of Civil Procedure, 1908. Further, the prayer for amendment is also required to be allowed to avoid multiplicity of proceedings provided that proposed the amendment does not result in injustice. [25] In the instant case, though belatedly the petitioner has sought for amendment in his plaint, however, by allowing the same, the multiplicity of the proceedings may be avoided. Whether after amendment he has a good case or not is to be decided in the trial. However, for the limited purpose of deciding the question as to whether the amendment is required to be allowed or not, this court is of considered opinion that since the amendments sought to be incorporated are also connected with the suit land and it would certainly avoid multiplicity of proceedings. Same is required to be allowed. However, since much delay has been caused in seeking amendment of the plaint by the petitioner, a cost of Rs 5000/- (Rupees Five Thousand only) is imposed on him. [26] The petitioner shall file the amended plaint before the trial court on or before 31st of July, 2026 subject to payment of cost of Rs. 5000/- to the respondent. The payment of cost imposed hereby shall be condition precedent for acceptance of amended plaint by the trial court. 13 CRP(IO)/412/2023 Page 13 [27] It is also clarified that no further date shall be granted by the trial court to submit the amended plaint. If any lapse occurs on the part of the petitioner, it shall be deemed that his prayer for filing amended plaint is rejected. After filing of the amended plaint, the trial court shall grant scope to the respondent/defendant to file written statement against the amended plaint and proceed with the trial accordingly. [28] This revision petition is, accordingly, disposed of. JUDGE Comparing Assistant Munmu n Boruah Digitally signed by Munmun Boruah Date: 2026.05.27 14:03:01 +05'30'