CHITRA BORTHAKUR Vs. MINADHAR BORTHAKUR

JUDGEMENT

(1.) Heard Mr. GP Bhowmik, learned senior counsel assisted by Ms. M Kalita, learned counsel for the petitioner and Ms. S Chakra--borty, learned counsel for the respondents.

(2.) It is submitted that the respondent No. 16 during pendency of this revision petition, had died. However, his legal heirs are not brought on record. Rest of the respondents are represented and this being a revision application, the proper steps for substitution be taken in the trial court subject to the prevalent law. At the consent given by the parties this revision petition is taken up for disposal.

(3.) The present petitioner, as the plaintiff, filed Title Suit No. 39/2001 against the present respondents, as the defendants, seeking for partition of the properties mentioned in the schedule of the plaint. The respondents entered appearance and raised, amongst others, the plea of non-joinder of necessary parties and the plea of maintainability of the suit itself owing to non-inclusion of the total family properties in the hotch-potch of the partition. It is pertinent to mention here that while raising the plea of non-maintainability of the suit, the defendants/ respondents through their written statement indicated the properties left out from the suit and the names of the parties left out to be impleaded. The plaintiff/ petitioner thereafter the commen-cement of the trial, preferred an application under Order I Rule 10 of the Code of Civil Procedure (for short, 'CPC') thereby seeking to implead some of the family members as necessary parties to the suit as pointed out in the written statements of the respondents. Along with the said application, another application under Order VI Rule 17 of the CPC was also filed with a prayer to include amongst others, various properties mentioned in the schedule of the said petition for amendment. The learned trial court i.e. the court of learned Civil Judge at Tinsukia registered the application under Order I Rule 10 of the CPC as Misc. (J) Case No. 7/2010 and the one under Order VI Rule 17 of the CPC was registered as Misc. (J) Case No. 6/2010. The respondents herein objected to both the petitions. In Misc. (J) Case No. 6/2010, the defendants/ respondents raised the plea that as the trial had already commenced, the application for amendment ought to be rejected moreso, when the plaintiff/ petitioner had failed to show his due diligence to overcome the hurdle of delay in bringing the prayer for such amendment. The court of learned Civil Judge, Tinsukia vide order dated 24.9.2010 disposed of both the miscellaneous cases as aforesaid vide two separate orders. By the said order, the petition under Order I Rule 10 of the CPC was allowed thereby bringing the legal heirs of Late Sashidhar Borthakur on record as necessary parties and the learned court below directed the present plaintiff/ petitioner to take steps on the newly added party. On the other hand, the learned court below dismissed the application under Order VI Rule 17 of the CPC. While dismissing the said petition, the learned court below observed that the suit was at the judgment stage. Since 2001, the present petitioner had got ample opportunity to raise the amendment of the plaint but failed to bring such amendment. Rather, the plaintiff/ petitioner had slept over his right. The court below came to the conclusion that there was dearth of due diligence on the part of the petitioner. Further, the learned court below observed that the plaintiff/ petitioner had failed to substantiate the immovable and movable properties, sought to be introduced by way of amendment by any documentary proof. Finally, the learned court below came to the conclusion that introduction of the said amendment would necessitate a fresh trial and/ or letting in of fresh evidence