Gauhati High Court
Md. Sariful Islam And 3 Ors vs Md. Ataur Rahman And 7 Ors on 13 July, 2026
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.# 6/7the 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
