Page No.# 1/13 GAHC020007552024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : I.A.(Civil)/204/2024 SMTI. LIRENI KIKON WIFE OF SHRI N. KIKON RESIDENT OF SENJUM VILLAGE RANGAPAHAR DIMAPUR NAGALAND VERSUS SHRI APONG PONGENER AO AND 3 ORS SON OFNP.SENTI AO VILLAGE-CHANGKI MOKOKCHUNG NAGALAND C/O SHRI T.L. MERRY DUNCAN BOSTI DIMAPUR. NAGALAND 2:SHRI JANGKHOSIE HANGSING THROUGH LEGAL HEIR SHRI H. HANGSING SUPERINTENDENT FINANCE DEPARTMENT NAGALAND CIVIL SECRETARIAT RESIDENT OF D BLOCK NEAR JB JASOKIE RESIDENCE KOHIMA Page No.# 2/13 NAGALAND 3:THE STATE OF NAGALAND REPRESENTED BY THE SECRETARY TO THE GOVT. OF NAGALAND DEPT. OF LAND REVENUE KOHIMA NAGALAND 4:THE DEPUTY COMMISSIONER DIMAPUR NAGALAND ------------ Advocate for : N K LUIKHAM Advocate for : appearing for SHRI APONG PONGENER AO AND 3 ORS BEFORE HON'BLE MRS. JUSTICE SHAMIMA JAHAN ORDER 22.07.2025 This is an application under Order VI Rule 17 read with Section 151 of the CPC, 1908 by which the applicant has prayed that he may be allowed to amend the plaint by inserting Schedule to the copy of the plaint. It is the case of the applicant that the original plaint was filed before the Trial Court without the Schedule as required under Order VII Rule 3 of the CPC. The applicant further states that the said issue was raised during the Trial Court proceeding and the issue being Issue No. 3 was formulated as to whether the Suit is liable to be dismissed for non-description of the suit land. The counsel for the applicant further submits that the said issue was considered by the Trial Court and the Trial Court observed that there has been enough Page No.# 3/13 description of the land in the plaint and as such, it was not required for a Schedule to be appended there with the plaint. Thereafter, upon conclusion of the trial, the judgment was passed in favor of the appellant/plaintiff and a decree was made. Aggrieved of the said judgment, the respondent No. 1 went on appeal before the First Appellate Court and upon hearing the appeal, the Appellate Court delivered the judgment in favor of respondent No. 1. One of the issues that was considered by the Appellate Court was the absence of the Schedule i.e., description of the land to the plaint. Against the said judgment & order, the plaintiff/appellant has come before this Court by filing a second appeal. During the hearing of the second appeal, the appellant filed the instant I.A being I.A(Civil) No. 204/2024 praying for a direction from this Court to allow the amendment of the plaint by inserting the Schedule to the same. 2. Mr. A.C. Sarma, learned Senior Counsel appearing for the applicant submits that due to bona fide mistake of the advocate, the Schedule of the property was not specifically mentioned as required under Order VII Rule 3 of the CPC, 1908. He further submits that the amendment of the plaint can be entertained at any stage as has been held by the Hon’ble Supreme Court in a number of decisions. He relied upon the following decisions:- Page No.# 4/13 (1) Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited & Anr. reported in 2022 SCC OnLine SC 1128 (2) Malavva & Anr. Vs. Kalsammanavara Kalamma reported in 2024 SCC OnLine SC 3846. (3) Rajendra Prasad Vs. Kayastha Pathshala, Allahabad & Ors. reported in 1981 (Supp) SCC 56 (4) Vasantha through Legal Representative Vs. Rajalakhsmi reported in 2024 5 SCC 282 (5) Sandha Debi Thapa Vs. Anjali Debi Thapa & Ors. reported in 2003 (2) GLT 368 and (6) Hasfa Khanam Vs. Legal Heirs of Amarendra Goswami & Anr. reported in 2018 (1) GLT 500. 3. By relying upon the said judgments, Mr. A.C. Sarma, learned Senior Counsel submits before this Court that the amendments which are necessary for determining the real question in controversy shall be allowed unless the same causes injustice or prejudice to the other side. It also needs to be allowed for effective and proper adjudication of the controversy between the parties. He also submits that when the amendment does not change the nature of Suit or cause of action so Page No.# 5/13 as to setup an entire new case, the same must be allowed. He further submits that the amendment is not for any malafide reasons. He also stated that the description of the land was already there in the plaint. However, in consonance with Order VII Rule 3 CPC, he prays for the addition of the Schedule to the plaint which was left due to inadvertence. As such, he prays that in the interest of justice, the description of the land as Schedule A may be allowed to be submitted in the plaint. 4. Mr. Imti Longem, learned counsel for the respondent No. 1 had filed an affidavit-in-opposition in the instant I.A and has further submitted that the said amendment at this stage is not permissible under law. He placed reliance on Order VI Rule 17 and stated that although amendment to the pleadings is allowed but the same is not permissible after the trial commences unless the court comes to the conclusion that the party could not raise the matter before commencement of the trial inspite of due diligence. He relied on the decisions as mentioned herein below:- (1) Rajkumar Guruwara Vs. S.K. Sarwagi and Company Private Limited reported in (2008) 14 SCC 364 (2) Vidyabai Vs. Padmakatha reported in (2009) 2 SCC 409 and Page No.# 6/13 (3) J. Samuel Vs. Gattu Mahesh reported in (2012) 2 SCC 300 5. By relying upon the said judgments. Mr. Imti Longjem submits that the Hon’ble Supreme Court has made it clear that after Order VI Rule 17 was amended and brought into effect from 01.07.2002, no application for amendment of the pleading would be allowed after the trial has commenced unless the party shows that they could not raise the matter inspite of due diligence. It was also held that although Order 6 Rule 17 confers jurisdiction on the court to allow either of the parties to alter their pleadings at any stage of proceedings but the terms have to be just and such amendment would be considered liberally during pre-trial. However, after the trial is commenced or after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, the court has to satisfy the condition prescribed in the proviso i.e., due diligence. 6. Mr. Imti Longjem, learned counsel has further submitted that before commencement of the trial, when he filed his written statement, he raised the issue that the Suit is liable to be dismissed for non-description of the Suit land, which culminated in framing of Issue No. 3 as stated above. As such, he submits that the applicant cannot raise the ground that inspite of due diligence, the amendment could not be prayed for and that the plaintiff deliberately chose not to amend Page No.# 7/13 the plaint by adding the Schedule thereof and that the trial commenced and ended in judgment. He further submits that the said amendment to the plaint i.e., addition of Schedule to the plaint was not even raised before the First Appellate Court by the plaintiff and it is only when the present second appeal was in the process of hearing for final disposal, the applicant filed the instant I.A for amendment of the plaint. He also submits that before the First Appellate Court, it was he who raised the issue that the plaintiff had not described the Schedule property to which the plaintiff replied that it was not required inasmuch as, Issue No. 3 was answered by the Trial Court and that description of the land was sufficiently described in the plaint. 7. Heard the learned counsels for both the parties. 8. At the outset, it is required to consider Order VII Rule 3 of the CPC to find out as to whether appending description of the property by way of Schedule to the plaint is mandatory or not. Order VII Rule 3 is reproduced below: “3. Where the subject-matter of the suit is immovable property.—Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint Page No.# 8/13 shall specify such boundaries or numbers.” 9. A bare perusal of the aforesaid provision makes it clear that the plaint shall contain the description of the property for its identification and the word used in the said provision is ‘Shall’. It is noticed in the instant case while filing the plaint, the plaintiff did not append the description of his property in the said plaint. The respondent No. 1 in his written statement before the Trial Court had raised the objection that the suit would be barred in absence of the same. In pursuance to that, Issue No. 3 was formulated by the Trial Court to which however, the plaintiff submitted that there was enough description of the land in the plaint and on the said submission, the prayer made in the plaint was allowed in the absence of the said description. The title was established in favor of the plaintiff and a decree was framed. As has been stated above, the respondent No. 1 filed an appeal before the First Appellate Court wherein, the said respondent raised the issue of non-description of the suit land in the plaint to which the plaintiff replied that the same was not required in view of the fact that the suit land was sufficiently described in the plaint. Further, as has been stated above, the First Appellate Court decided in favor of the respondent No. 1 on various grounds, one being non-description of the suit land and when the plaintiff came in appeal before the High Court in second appeal, he had filed the instant I.A for amendment of the Page No.# 9/13 plaint that too at the final stage of hearing. In this connection, it is apposite to refer to Order VI Rule 17, which deals with amendment of pleadings. Order VI Rule 17 is quoted herein below:- “17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be 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.” 10. It be stated herein that this Rule 17 was amended and brought into effect from 01.07.2002. It is as such clear from the said provision that although pleadings can be amended at any stage of the proceedings, that is also during the appellate stage but the proviso appended to the same provides for a rider inasmuch as, the same i.e., amendment of pleadings would be allowed in pre-trial stage. However, after the trial is commenced, amendment to the pleadings would not be allowed unless the court reaches to a finding that the party could Page No.# 10/13 not raise the matter inspite of due diligence before trial. The meaning of the word ‘due deligence’ is the care that a reasonable person exercise before committing any act. 11. During the filing of the plaint, the appellant/plaintiff had not mentioned the description of the property by way of a Schedule appended therein and inspite of the fact that the respondent No. 1 in his written statement had raised the non-maintainability of the plaint on the said ground, the appellant had deliberately refused to add the Schedule. Even after the issue being Issue No. 3 was framed on the said point, yet the appellant chose not to adhere to Order VII Rule 3 of the CPC, which makes it mandatory for the party to add the description of the property for its identification. The answer given by the appellant as has been stated at the bar that since enough description is present in the plaint, the Schedule may not be appended therein. Further, in the present I.A, the applicant had stated, especially in Paragraph No. 4 of the same that the Schedule of the property was not specifically mentioned as required under Order VII Rule 3 of the CPC due to Bonafide mistake of the advocate by further admitting that the description of the suit land is required to be inserted in the plaint to ascertain the actual area of the land possessed by the plaintiff. 12. It is noticed that the plaintiff had taken different stand before Page No.# 11/13 the Trial Court and before the Appellate Court. Before the Trial Court, the plaintiff stated that description of the property separately was not required and before the High Court, the plaintiff had stated that it is mandatory to provide the description of the suit land, however, the same was not provided due to the mistake of the advocate. The Hon’ble Apex Court had consistently held that court should adopt a liberal approach to allow amendments that are necessary for effective adjudication. However, if the same introduces a new cause of action or causes prejudice to the other party, the same may not be allowed. It is submitted by the counsel appearing for the applicant that amendment of the plaint in the present case would not alter the cause of action but the same would in the consideration of this Court would cause prejudice to the respondents. 13. In view of Order VI Rule 17, post commencement of trial, amendments are allowed only if the party shows that despite due diligence, the matter could not have been raised earlier. This is not the case in the instant application. The applicant knew about the requirement, which was again brought forth by the respondent No. 1. In the decision of the Hon’ble Supreme Court passed in Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited &Anr. (supra), the Hon’ble Apex Court while laying down comprehensive guidelines for allowing amendment under Order VI Rule 17 held that Page No.# 12/13 the same may be allowed unless it cause prejudice to the other party. In the present case, the respondent No. 1 had prayed for dismissal of the suit for violation of Order VII Rule 3 of the CPC but the learned Trial Court had not accepted the same. The counsel appearing for the respondent No. 1 had in no unclear terms stated that if the same is allowed at this stage, it would cause prejudice to him. Further, the proviso appended to Order VI Rule 17 that after the commencement of the trial, the amendment should not be allowed unless the party shows that they could not raise the matter inspite of all the care he had taken. Since the applicant had full knowledge of the said fact and law and did not raise the same before the trial started, the same cannot be raised at this stage. 14. In view of the statements made above, this Court is not inclined to allow the instant I.A and the same is rejected for the ends of justice. 15. I.A stands disposed of. Sd/- JUDGE Page No.# 13/13 Comparing Assistant