Heard Mr. R.J. Bordoloi, the learned counsel for the petitioner as well as Mr. A. Biswas, the learned counsel for the respondent No. 1. None appears for respondent No.2 although notice is deemed to be duly served.

2. This application under article 227 of the Constitution of India has been filed for challenging the order dated 05.05.2017 passed by the learned Civil Judge No.2, Kamrup (Metropolitan), Guwahati in Misc.(J) Case No. 730/2016 arising out of Title Suit No. 387/2014, whereby the prayer for amendment of the written statement was rejected.

3. The respondent No.1 is the plaintiff in Title Suit No.387/2014. The said suit had been instituted for declaration, partition, separate possession and permanent injunction in respect of properties described in Schedule 1 to 6 described in the plaint. The petitioner, who was arrayed as defendant No.1 in the suit, contested the claim by filing written statement.

4. In the month of February 2017, the petitioner filed an application under Order VI Rule 17 read with section 151 CPC for amending the written statement. On the perusal of the Petition No. 4958, filed for amendment of the plaint, extensive amendments were proposed, seeking inserting of a few paragraphs at the end of paragraphs 21, 23, 25 and 27. The respondent No.1/plaintiff contested the application by filing written objection. The learned Trial Court rejected the prayer for amendment by passing the impugned order dated 05.05.2017.

5. Challenging the said order, the learned counsel for the petitioner has submitted that the written statement was filed through earlier set of counsels and the present set of counsel were engaged recently and the new set of counsels after going through the brief had informed the petitioner that there was no specific/detailed reply in the written statement against the main disputed facts and some vital and necessary facts were also left out. It is submitted that the petitioner had duly instructed his earlier set of counsels and by giving necessary instructions and documents. But, only after engaging the present set of counsel the petitioner came to know that the earlier counsel neither submitted any documents in respect of schedule 5 and 6 with the written statement nor a detailed reply was given in connection with schedule 5 and 6 as well as other properties mentioned in the plaint. It is further submitted that there was no laches or negligence on the part of the petitioner and he was a lay man who did not know to defend his case and what is required and what is not required to be incorporated in the written statement and the petitioner was totally dependent on his counsel in drafting the written statement. It is submitted that the petitioner was under a bona fide impression that as he had given the entire instructions to his counsel all the necessary averments had been made in the written statement. It was submitted that the reason for not incorporating those facts at earlier stage was beyond the control of the petitioner and in spite of negligence on the part of the petitioner he could not incorporate those averments in the written statement. It is submitted that the learned Trial Court had incorrectly appreciated the arguments advanced by the petitioner’s side and failed to apply its judicial mind on the nature of the judicial amendment sought for, which according to the learned counsel for the petitioner, is evident from the finding recorded in the original order to the following effect - “…If the defendant is allowed to amend the written statement in such circumstances, I suppose, it will negate the plea taken by the defendant in his written statement, which is an implied admission in favour of the plaint”, as well by the finding that “… The application for amendment does not disclose any material to come to a conclusion that in spite of due diligence, the amendment petition could not have been filed or the defendants could not have raised the matter before the commencement o