The court emphasized that the amendment sought for adjudication of the real question in controversy should be allowed despite the delay, as it was necessary for the effective adjudication of the suit.

1. This is an application filed under Article 227 of the Constitution challenging the order dated 17.05.2016 passed in Misc. (J) Case No.18/2015 arising out of Title Suit No.13/2012 whereby the application filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 read with Section 151 of the said Code was rejected by the learned Court of the Munsiff No.1, Nagaon.

2. From the materials on record, it reveals that the plaintiff who is the Petitioner herein has filed the suit for declaration of right, title and interest of the plaintiff over the Schedule-A land; for khas possession of the same and also for permanent injunction. The said suit was registered and numbered as Title Suit No.13/2012. The defendants thereupon filed their written statement on 11.04.2012 wherein it was categorically mentioned that the defendants are claiming right, title and interest over the Schedule-A land on the basis of a Sale Deed No.5050/78 dated 19.05.1978 executed by one Dungarmal Bagaria in favour of the Sitaram Sethia. Thereupon, the plaintiff did not take any steps. At the stage when the suit was fixed for submission of the evidence on affidavit of the plaintiff, the application under Order VI Rule 17 read with Section 151 of the Code was filed seeking amendment of the plaint thereby to insert paragraph Nos. 4(a) and 4(b) and in addition to that, seeking the reliefs of a decree for cancellation of the said sale deed on the ground that the same is fraudulent, illegal and null and void and a precept be issued in that regard.

3. Upon the said application being filed, the defendants had filed their objections stating inter alia that the plaintiff knew very well about the Deed of Sale as the same was duly mentioned in the written statement which was received by the counsel for the plaintiff on 11.04.2012 and after a lapse of more than 3 (three) years, had filed the said application.

4. The learned Trial Court vide an order dated 17.05.2016 rejected the said application filed by the plaintiff/Petitioner on the ground that there has been no satisfactory explanation to the delay in filing of the application that too when the trial had started. It is against the said order, the instant application has been filed before this Court challenging the order dated 17.05.2016.

5. This Court has heard the learned counsel for the Petitioner as well as the Respondents. The learned counsel appearing on behalf of the Petitioner Mr. U. K. Das submitted that after the written statement was filed, the plaintiff made necessary enquiries and as such there has been a delay. He further submitted that only after the issues were framed and thereupon at the time when the evidence on affidavit was required to be filed, the plaintiff sought for amendment of the plaint.

6. On the other hand, Mr. R. C. Sancheti, the learned counsel appearing on behalf of the Respondents submitted that this is a clear cut case of negligence on the part of the Petitioner/plaintiff in filing the application seeking the amendment. He further submitted that the plaintiff very well knew about the execution of the Deed of Sale even prior to the filing of the suit. However, in order to mislead the Trial Court as well as this Court, the plaintiff had stated that he only came to know about the execution of the Deed of Sale only after the filing of the written statement. He submitted that if the amendments were allowed, it would impact the defence of limitation which the defendants have a due right as per the statute.

7. Having given the anxious consideration to the relevant submissions, this Court is of the opinion that the issue of limitation or for that matter as to whether any challenge would be barred by limitation cannot be decided at the stage of proceedings under Order VI Rule 17 of the Code. This Court is not unmindful of the fact that Section 3 of the Limitation Act, 1963 confers a statutory right upon the defendants and in the instant case, it has been the specific case of the defendants that t