The proviso to Order 6 Rule 17 of the Code of Civil Procedure mandates that after trial commencement, an amendment to pleadings is prohibited unless the court finds that the party could not have raised the matter earlier despite the exercise of due diligence.

ORDER :

ROBIN PHUKAN, J.

Heard Mr. S. Sarma, learned senior counsel assisted by Mr. A. Gautam, learned counsel for the petitioner and Mr. S.N. Krishnatraya, learned counsel for the respondent.

2. In this petition, under Article 227 of the Constitution of India read with Section 151 of the CPC, the petitioner has put to challenge the correctness or otherwise of the order dated 16.02.2024, passed by the learned Civil Judge (Senior Division) No. 2, Kamrup (M) at Guwahati, in Misc. (J) Case No. 322/2023, arising out of Title Suit No. 518/2013.

3. It is to be noted here that vide order dated 16.02.2024, the learned Civil Judge (Senior Division) No. 2, Kamrup (M) at Guwahati has allowed the amendment petition filed by the respondent herein for amendment of the plaint.

4. Mr. Sarma, learned senior counsel appearing for the petitioner submits that the petitioner is the defendant in the Title Suit No. 518/2013, pending before the court of learned Civil Judge (Senior Division) No. 2, Kamrup (M) at Guwahati and the suit was pending at the stage of cross-examination of witnesses. Mr. Sarma further submits that the suit was instituted by the respondent in the year 2013 and the present petitioner had filed written statement-cum-counter claim in the year 2014. Thereafter, the suit was fixed for hearing on 02.04.2015, and the trial was commenced on 09.03.2015. Thereafter, the respondent had filed one amendment petition, under Order 6 Rule 17 of the CPC for amendment of the plaint. But, despite the objection being filed by the petitioner herein, the learned trial court, vide impugned order dated 16.02.2024, had allowed the amendment petition without considering the proviso to Order 6 Rule 17 of the CPC. Mr. Sarma further submits that the due diligence was not pleaded in the said petition and also not considered by the learned trial court. Mr. Sarma referring to the written statement submitted by the petitioner herein, submits that in paragraph No. 26 of the said written statement, it had clearly been stated that the petitioner herein had obtained NOC from the GMC on 26.11.1997, for construction of six storied RCC multi-storied building, over the plot of land, which was purchased by the petitioner herein and showing some photographs of the aforementioned building, Mr. Sarma also submits that construction of the said building had already been completed.

4.1. Mr. Sarma further submits that the respondent herein had also filed one injunction petition before the learned trial court, upon which Misc. (J) Case No. 442/2021, was registered and injunction was granted therein and in the schedule of the Misc. (J) case, the respondent herein had clearly stated that the schedule covers a plot of land measuring 3.08 Are and a two storied (extended another four storied) building measuring 1500 sq. ft. per floor, covered by Dag No. 1981(N) K.P. Patta No. 1030(N) of village – Part II, Sahar Sarania. Mr. Sarma further submits that knowing fully well about the construction of the said building on the date of filing of the injunction petition on 29.09.2021, the respondent herein had filed the amendment petition only on 23.03.2023, after almost six years. And as such, due diligence, as required under the provision of Order 6 Rule 17 of the CPC, has neither been pleaded nor been established and without consideration of the same, the learned trial court also had allowed the amendment petition and on such count, the impugned order, so passed by the learned trial court is arbitrary and illegal and therefore, Mr. Sarma has contended to set it aside.

4.2. Mr. Sarma, in support of his submi