Page No.# 1/6 GAHC010000702024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/37/2024 ON THE DEATH OF SAMSUN NEHAR HER LEGAL HEIR SHABANA SULTANA W/O- MR. NEKIBUL ISLAM, R/O- STATION ROAD, WARD NO. 9, DHUBRI TOWN, P.O. AND P.S. DHUBRI, DIST. DHUBRI, PIN- 783301, ASSAM VERSUS ON THE DEATH OF SADEKUR RAHMAN @ SADEKUR KHANDAKAR HIS LEGAL HEIRS SHORIFA BEWA AND 5 ORS DHUBRI, ASSAM 1.1:SHORIFA BEWA W/O- SADEKUR RAHMAN @ SADEKUR KHANDAKAR R/O- STATION ROAD WARD NO. 9 DHUBRI TOWN P.O. AND P.S. AND DIST. DHUBRI PIN- 783301. 1.2:SARFARAZ NEWAZ RAHMAN S/O- LATE SADEKUR RAHMAN @ SADEKUR KHANDAKAR R/O- STATION ROAD WARD NO. 9 DHUBRI TOWN P.O. AND P.S. AND DIST. DHUBRI PIN- 783301. 1.3:SAMIM ARA SULTANA D/O- LATE SADEKUR RAHMAN @ SADEKUR KHANDAKAR R/O- STATION ROAD WARD NO. 9 DHUBRI TOWN Page No.# 2/6 P.O. AND P.S. AND DIST. DHUBRI PIN- 783301. 1.4:SABIHA SULTANA W/O- ANOWAR HUSSAIN D/O- LATE SADEKUR RAHMAN @ SADEKUR KHANDAKAR R/O- WARD NO. 8 DHUBRI TOWN NEAR POLICE RESERVE CR DAS ROAD DHUBRI DIST. DHUBRI ASSAM 1.5:SABINA SULTANA W/O- MOHIBUL HOQUE D/O- LATE SADEKUR RAHMAN @ SADEKUR KHANDAKAR R/O- BILASIPARA TOWN OPPOSITE UNITED BANK OF INDIA P.S. BILASIPARA DIST. DHUBRI ASSAM PIN- 783301. 3:THE STATE OF ASSAM REPRESENTED BY THE COLLECTOR DHUBRI P.O. P.S. AND DIST. DHUBRI ASSA Advocate for the Petitioner : MR. K K DEY, MR. M HUSSAIN,MR V K BAROOAH Advocate for the Respondent : GA, ASSAM, S W HUSSAIN,MR. A Z AHMED (R-1.1, 1.2),MR. L R MAZUMDER BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA ORDER 10.11.2025 Heard Mr. K K Dey, learned counsel appearing for the petitioner. Also heard Mr. A. Z. Ahmed and Mr. T. R. Gogoi, learned counsels appearing for the respondents. 2. This is an application under Article 227 of the Constitution of India challenging the Page No.# 3/6 order dated 27.09.2023, passed by the learned Civil Judge, Jr. Division No. 2, Dhubri, in Misc (J) Case No. 52/2023 arising out of T.S. 154/2018. 3. The petitioner had filed the suit for partition of property before the court below against the respondents. The petitioner, thereafter, filed another petition being Misc.(J) Case No. 52/2023 praying for amendment of the plaint under Order 6 Rule 17 of the CPC. 4. The whole property has been described in Schedule-A of the plaint. Schedule-B is a house situated on a part of Schedule-A land. Thereafter, during pendency of the suit, the respondents started construction of a house on another part of Schedule-A land. Therefore, the petitioner wanted to add another Schedule being Schedule-C in the plaint where the respondents were undertaking construction work in respect of a house. 5. The trial court held that the proposed amendment would not change the nature and subject matter of the suit. Even then, the trial court had held that the amendment is not necessary to arrive at a just decision of the suit. That is why the prayer for amendment was rejected. 6. In order to buttress his point, Mr. Dey has relied upon a judgment of the Hon’ble Supreme Court that was delivered in the case of LIC v. Sanjeev Builders (P) Ltd., (2022) 16 SCC 1 where the Supreme Court has held as under: “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: 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. Page No.# 4/6 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 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] .)” 7. Per contra, Mr. Ahmed has deliberated upon applicability of Article 227 of the Constitution of India in this case and relied upon another judgment of the Hon’ble Supreme Court, that was delivered in the case of Raj Kumar Bhatia v. Subhash Chander Bhatia, (2018) 2 SCC 87 where the Supreme Court has held as under: “12. This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution Page No.# 5/6 entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227. In Sadhana Lodh v. National Insurance Co. Ltd. [Sadhana Lodh v. National Insurance Co. Ltd., (2003) 3 SCC 524 : 2003 SCC (Cri) 762] , this Court has held that the supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The trial court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 CPC. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21-9-2013 that an amendment of the plaint was allowed by the trial court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the plaintiff.” 8. I have considered the submissions made by the learned counsel of both the sides. 9. The learned trial court has clearly held that the proposed amendment would not change the nature and character of the suit. It rejected the prayer of the petitioner only on the ground that such amendment would not be necessary to decide the real question in controversy. 10. It is a settled position of law that all amendments are to be allowed which were necessary for determination of 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 later part of Order 6 Rule 17 of the CPC. So, whenever a prayer for amendment is made, the court has to see whether it would cause injustice or prejudice to the Page No.# 6/6 other party. A prayer for amendment is generally required to be allowed unless a time barred claimed is sought to be introduced. The court has to see that the proposed amendment would not change the nature of the suit. 11. This court is of the opinion that if the amendments were allowed by the trial court, in that case applicability of Article 227 of the Constitution of India would have been doubtful. In the case in hand, the trial court has not applied the judicial mind. 12. Under the given circumstances, this court is of the opinion that the learned trial court has erroneously held that the amendment as proposed by the petitioner is not necessary to determine the real question in controversy. Therefore, the impugned order dated 27.09.2023, passed by the learned Civil Judge, Jr. Division No. 2, Dhubri, in Misc (J) Case No. 52/2023 arising out of T.S. 154/2018 requires to be interfered with. Accordingly, the said order is set aside. The trial court shall allow amendment of the plaint as proposed by the petitioner/plaintiff. After that, the trial court shall proceed to dispose of the suit in accordance with law. 13. The civil revision petition is disposed of accordingly. JUDGE Comparing Assistant