Point of Law: Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. P.C. Dey, the learned counsel appearing on behalf of the petitioner. Also heard Mr. R.K. Bhuyan, the learned counsel appearing on behalf of respondent No. 1 and Mr. A. Sattar, the learned counsel appearing on behalf of respondent No. 2.

2. This is an application filed under Article 115 read with Section 151 of the Code of Civil Procedure, 1908 challenging the order dated 05.08.2015 passed by the Munsiff No. 1, Kamrup (M) at Guwahati whereby the petition No. 4184/2015 filed in Title Suit No. 384/2012 by the plaintiff for amendment of the plaint was allowed.

3. At the outset, the learned counsel for the petitioner had submitted that the instant proceedings ought to have been a proceeding under Article 227 of the Constitution taking into account the limited scope and ambit of Section 115 post the 2002 Amendment. Taking into account the said submission and also to the effect that the matter has been pending since long before this Court and it would not be proper to dismiss the petition on the ground of maintainability, this Court converts the instant proceeding to a proceeding under Article 227 of the Constitution.

4. The facts of the instant case is that the respondent No. 1 herein had filed a suit against one Abdul Ali and three others. The case of the plaintiff in the said suit as would appear from the un-amended plaint is that the plaintiff is the owner and the title holder with possession in respect to a plot of land measuring 4 kathas covered by Dag No. 775 old/3995 (new) of KP Patta No. 56/47 (old)/762 (new) in Mouza Beltola village Hengrabari under P.S Dispur in the district of Kamrup, Assam. The said land have been more specifically described in Schedule A to the plaint. It is the case of the plaintiff that the plaintiff had purchased the said land in the year 1986 vide a registered sale deed bearing deed No. 2701 dated 27.11.1986 from its original owner and pattadar Md. Nasir Ali, the proforma respondent No. 4. It has also been mentioned that as in the original deed of sale there were certain mis-description of the western boundary there was a rectification deed bearing deed No. 5744 dated 19.06.2012.

5. The case of the plaintiff further is that the father of the plaintiff, one Sri Haren Chetia time to time developed the land by filling earth and the same was looked after by the proforma defendant No. 4 on behalf of the plaintiff. There was no dispute over the said land till 14.01.2012 when the plaintiff employed some labourers to repair and clean the existing boundary wall over the suit land, a group of 20 (twenty) person lead by the defendant No. 1 Md. Abdul Ali also known as painter obstructed them and threatened with dire consequences. It was alleged that the miscreants tried to illegally grab the land by erecting bamboo posts and earth filling along with the land of the defendant No. 3. Having come to know about the same the plaintiff rushed to the suit land and tried to resist and object to the illegal acts of the defendant Nos. 1 and 2 and their men. Upon objection being raised the defendant Nos. 1 and 2 claiming themselves as the owner of the land of the defendant No. 3 as well as the suit land forcefully proceeded with the earth filling works as well as erecting the bamboo fencing surrounding the suit land. It has averred in the plaint that the defendant Nos. 1 and 2 informed the plaintiff that the defendant No. 3 had sold the entire land including the suit land to the Defendant Nos. 1 and 2. Consequently, the plaintiff filed an FIR dated 16.01.2012 before the Officer-in-charge, Dispur Police Station which was registered as Non-FIR case bearing No. 6/12 under sections 107/145 Cr.P.C.

6. The plaintiff has further alleged that while the said proceeding was pending before the authorities the defendants erected RCC pillars and filled up the suit land with earth. Though the plaintiff tried to resist them but the defendants and their men outraged the plaintiff. As a result, the pla