Page No.# 1/7 GAHC010131352026 2026:GAU-AS:9492 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/298/2026 MD. SARIFUL ISLAM AND 3 ORS. S/O LATE MD. PIYAR ALI, R/O NO. 1 JAPORIGOG BYLANE NO. 2, NAYANPUR ROAD, P.S.- DISPUR, DISTRICT- KAMRUP (M), ASSAM, PIN- 781005. 2: MD. ALLEN ISLAM S/O LATE MD. PIYAR ALI R/O NO. 1 JAPORIGOG BYLANE NO. 2 NAYANPUR ROAD P.S.- DISPUR DISTRICT- KAMRUP (M) ASSAM PIN- 781005. 3: MD. FIRUZ HUSSAIN S/O MD. HANIF HUSSAIN R/O PANIGAON POKUA P.S.- BELSOR DISTRICT- NALBARI ASSAM PIN- 781303 4: MD. HANIF ALI S/O LATE SUBHAN ALI R/O PANIGAON POKUA P.S.- BELSOR DISTRICT- NALBARI ASSAM PIN- 781303 VERSUS MD. ATAUR RAHMAN AND 7 ORS. S/O LATE KUDRAT ALI, R/O PANIGAON POKUA, P.S.- BELSOR, DISTRICT- Page No.# 2/7 NALBARI, ASSAM, PRESENTLY RESIDING AT JAPORIGOG BYLANE NO. 2, NAYANPUR ROAD, P.S.- DISPUR, DISTRICT- KAMRUP (M), ASSAM. 2:BIPUL HALOI R/O BELSOR P.S.- BELSOR DISTRICT- NALBARI ASSAM. 3:MD. NAZRUL AHMED S/O LATE YAKUB ALI R/O PANIGAON P.S.- BELSOR DISTRICT- NALBARI ASSAM. 4:MD. NAZIM ALI S/O LATE MOTLEB ALI R/O POYOLA P.S.- NALBARI DISTRICT- NALBARI ASSAM. 5:MD. AZIZAR RAHMAN S/O SUBHAN ALI R/O PANIGAON P.S.- BELSOR DISTRICT- NALBARI ASSAM. 6:MD. LATIF AHMED S/O LATE PIYAR ALI R/O PANIGAON P.S.- BELSOR DISTRICT- NALBARI ASSAM 7:MD. SAMSUL HOQUE R/O PANIGAON P.S.- BELSOR DISTRICT- NALBARI ASSAM. 8:MD. MAZZAFAR ALI R/O PANIGAON P.S.- BELSOR DISTRICT- NALBARI ASSAM Page No.# 3/7 Advocate for the Petitioner : MR. I CHOUDHURY, HIMSHIKHA TALUKDAR,R L CHUTIA Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 13.07.2026 Heard Mr. I. Choudhury, learned counsel for the petitioners. 2. This petition, under Article 227 of the Constitution of India, the petitioners have challenged the order dated 23.04.2026, passed by the learned Civil Judge (Junior Division) No. 2, Nalbari (trial court hereinafter), in Misc. (j) Case No. 169/2024, in connection with Title Suit No. 118/2022. 3. It is to be noted here that vide impugned order, dated 23.04.2026, the learned trial court had allowed the petition No. 1596/2024, filed by the respondent herein under Order 6 Rule 17 read with Section 151 of the CPC for amendment of the plaint. 4. Mr. Choudhury, learned counsel for the petitioners submits that the petitioners are the defendants in the Title Suit No. 118/2022, pending before the learned trial court and in the said title suit, the petitioners herein, as defendants, had filed written statement. Thereafter, the issues have been framed and the respondents herein as plaintiffs had filed their evidence on affidavit on 04.12.2023 and 03.01.2024. Thereafter, the case was fixed for cross-examination of the witnesses. Then on 29.11.2024, the respondents herein had filed one petition, being petition No. 1596/2024, under Order 6 Rule 17 read with Section 151 of the CPC, for amendment of the plaint, on the Page No.# 4/7 ground that at the time of typing of the plaint some mistake crept in the plaint and the respondents herein were not aware of the same and thereafter, they had changed their counsel and filed the aforesaid petition for amendment of the plaint and the learned trial court without considering the proviso to Order 6 Rule 17 of the CPC had allowed the same. 4.1. Referring to a decision of Hon’ble Supreme Court in the case of Vidyabai and Others vs. Padmalatha and Another, reported in (2009) 2 SCC 409, Mr. Choudhury submits that only on fulfillment of the condition laid down in the proviso to Order 6 Rule 17 of the CPC, the amendment can be allowed. But, the respondents herein, in their application had failed to demonstrate due diligence on their part, as to why before commencement of the trial, they could not file the application for amendment and on such count, the impugned order dated 23.04.2026, fails to withstand the legal scrutiny and therefore, he has contended to set aside the same. 5. Having heard the submissions of learned counsel for the petitioners, this Court has carefully gone through the petition as well as the documents placed on record and also gone through the impugned order dated 23.04.2026, and also gone through the decisions relied upon by him. 6. It appears that the respondents herein had filed their evidence on affidavit on 04.12.2023 and 03.01.2024. But, the application for amendment of the plaint was filed on 29.11.2024, after almost a year. Further, in the said application, they have failed to demonstrate their due diligence as to why the application could not be filed before commencement of the trial. 7. In the case of Vidyabai (supra), Hon’ble Supreme Court, in paragraph No. 10, has held as under:- Page No.# 5/7 “10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter-alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under:- ‘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.’ It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefore are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. 11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfill 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.” 7.1. Thereafter, Hon’ble Supreme Court, in paragraph No. 19, has held as under:- “19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts Page No.# 6/7 the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.” 8. The aforesaid proposition is subsequently affirmed by the Hon’ble Supreme Court in the case of Pandit Malhari Mahale vs. Monika Pandit Mahale and Others, reported in (2020) 11 SCC 549. 9. In the instant case, as discussed in the paragraph No.6, in the said application, they have failed to demonstrate their due diligence as to why the application could not be filed before commencement of the trial. It is worth mentioning in this context that as held in the case of Vidyabai (supra), in para No.11, filing of an affidavit, in lieu of examination-in-chief of the witness, would amount to commencement of proceeding. And further, going through the impugned order, dated 23.04.2026, this Court finds that the learned trial court had ignored the proviso to Order 6 Rule 17 of the CPC. It had not directed any discussion in respect of the said proviso, inspite of the same being mandatory, while allowing amendment of the plaint after commencement of the trial. 10. Accordingly, taking note of the submissions of learned counsel for the petitioners and also taking note of the proposition of law laid down by Hon’ble Supreme Court, in the case of Vidyabai (supra) and subsequently in the case of Pandit Malhari Mahale (supra), this Court is of the view that the impugned order, dated 23.04.2026, fails to withstand the legal scrutiny and therefore, the same stands set aside and quashed. 11. The matter stands remanded to the learned trial court to hear both the parties a fresh on the application keeping in mind the proviso to Order 6 Rule 17 Page No.# 7/7 of the CPC, and the proposition laid down in the case of Vidyabai (supra). 12. The aforementioned exercise has to be carried out within a period of 4 (four) weeks from the date of receipt of the certified copy of this order. 13. The petitioners shall obtain a certified copy of this order and place the same before the learned trial court within a period of 1 (one) week from today. 14. In terms of above, this CRP(IO) stands disposed of. JUDGE Comparing Assistant