Page No.# 1/6 GAHC010270512023 2025:GAU-AS:1036 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/392/2023 ABISHKAR KHATUN AND 3 ORS W/O- LATE ABDUL AZIZ, RESIDENT OF VILLAGE- KAWAIMARI BLOCK NO. 11, MOUZA- PAKA, DISTRICT- BARPETA, ASSAM. 2: RAHIZ UDDIN S/O- LATE ABDUL AZIZ RESIDENT OF VILLAGE- KAWAIMARI BLOCK NO. 1 MOUZA- PAKA DISTRICT- BARPETA ASSAM. 3: KAYEM UDDIN S/O- LATE ABDUL AZIZ RESIDENT OF VILLAGE- KAWAIMARI BLOCK NO. 11 MOUZA- PAKA DISTRICT- BARPETA ASSAM. 4: AJMINA KHATUN D/O- LATE ABDUL AZIZ RESIDENT OF VILLAGE- KAWAIMARI BLOCK NO. 11 MOUZA- PAKA DISTRICT- BARPETA ASSAM VERSUS Page No.# 2/6 SABJAN NESSA AND 8 ORS W/O- LATE SIRAJUDDIN, RESIDENT OF VILLAGE- BHALUKABARI PATHAR, MOUZA- BETBARI, DISTRICT- BARPETA, ASSAM. 2:ABDUL RASHID S/O- LATE SIRAJUDDIN RESIDENT OF VILLAGE- BHALUKABARI PATHAR MOUZA- BETBARI DISTRICT- BARPETA ASSAM. 3:ABDUL MAZID S/O- LATE SIRAJUDDIN RESIDENT OF VILLAGE- BHALUKABARI PATHAR MOUZA- BETBARI DISTRICT- BARPETA ASSAM. 4:FAZLUR RAHMAN S/O- LATE SIRAJUDDIN RESIDENT OF VILLAGE- BHALUKABARI PATHAR MOUZA- BETBARI DISTRICT- BARPETA ASSAM. 5:RAJAB ALI S/O- LATE SIRAJUDDIN RESIDENT OF VILLAGE- BHALUKABARI PATHAR MOUZA- BETBARI DISTRICT- BARPETA ASSAM. 6:TAZAR ALI S/O- LATE SIRAJUDDIN Page No.# 3/6 RESIDENT OF VILLAGE- BHALUKABARI PATHAR MOUZA- BETBARI DISTRICT- BARPETA ASSAM. 7:ANEZ ALI S/O- LATE SIRAJUDDIN RESIDENT OF VILLAGE- BHALUKABARI PATHAR MOUZA- BETBARI DISTRICT- BARPETA ASSAM. 8:TAFIZUDDIN S/O- LATE SIRAJUDDIN RESIDENT OF VILLAGE- BHALUKABARI PATHAR MOUZA- BETBARI DISTRICT- BARPETA ASSAM. 9:ANNA KHATUN D/O- LATE SIRAJUDDIN RESIDENT OF VILLAGE- BHALUKABARI PATHAR MOUZA- BETBARI DISTRICT- BARPETA ASSAM For the Petitioner(s) : Mr. N. Haque, Advocate For the Respondent(s) : Mr. A. K. Purkayastha, Advocate Page No.# 4/6 BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH ORDER Date : 29.01.2025 Heard Mr. N. Haque, the learned counsel appearing on behalf of the Petitioners and Mr. A. K. Purkayastha, the learned counsel appearing on behalf of the Respondents. 2. This is an application filed under Article 227 of the Constitution challenging the order dated 10.11.2023 passed by the Court of the learned Civil Judge, (Junior Division) No.1, Barpeta in Misc. (J) Case No.146/2022 arising out of Title Suit No.204/2016 whereby the application seeking amendment of the written statement and the counter claim filed by the Defendants was allowed. 3. The Petitioners herein have assailed the order on the ground that the learned Trial Court did not take into consideration that the said amendment application so filed was without explaining due diligence which hits the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short ‘the Code’). 4. This Court duly takes note of the application so filed by the Respondents herein who were the defendants in the suit under Order VI Rule 17 of the Code seeking amendment of the written statement and the counter claim. In Paragraph Nos. 2, 3, 4 and 5, it has been mentioned that the Defendants came to learn that there was a gift made by one Sonaullah to Siraj Uddin of a plot of land admeasuring 4 Bighas out of the Schedule-A land. It has been further mentioned in the said application that the Defendants thereupon made rigorous searches and Page No.# 5/6 filed various applications before the Office of the Sub-Registrar and it was only after making such application, the Defendants could come to learn about the Registered Gift Deed No.1777 of 1962 whereby one Sonaullah Miah had gifted certain land to one Siraj Uddin who is the predecessor of the defendants. 5. This Court further finds it relevant to take note of that a certified copy of the said Registered Gift Deed No.1777 of 1962 was received by the Defendants on 26.04.2021. However, the Respondents herein for reasons best known waited till 31.05.2022 to file the instant application and there is no explanation in that regard. The learned Trial Court vide the order dated 10.11.2023 permitted the said amendments but however imposing a cost of only Rs.800/-. 6. This Court has duly perused the plaint as well as the written statement cum counter claim so filed by the parties to the suit as well as the application seeking amendment. It is the opinion of this Court that the amendments so sought for is necessary for determining the real question in controversy and as such, this court does not find any infirmity in the order passed by the learned Trial Court dated 10.11.2023 whereby the amendments were allowed. 7. Be that as it may, taking into account that such amendments have been allowed at a belated stage that too without any explanation for a period from 26.04.2021 to 31.05.2022, it is the opinion of this Court that the cost which have been imposed is too meagre. Accordingly, to balance the interest between the parties, this Court enhances the cost for allowing the application for amendment to Rs.25,000/- which the defendants shall deposit before the learned Trial Court on the next date Page No.# 6/6 so fixed. 8. It is further observed that in the circumstance an amount of Rs.800/- had already been paid, then in such circumstances, the Defendants shall deposit only an amount of Rs.24,200/-. 9. This Court further takes note of that the further proceedings of Title Suit No.204/2016 was stayed. The said stay order stands vacated and the parties herein are directed to appear before the learned Trial Court on 21.02.2025. On the said date, the said amount as stated above shall be deposited by the Defendants which shall be a condition precedent for acceptance of the amended written statement cum counter claim. The Petitioners herein would be at liberty to file appropriate application before the learned Trial Court for release of the said amount and the learned Trial Court shall pass appropriate orders. JUDGE Comparing Assistant