Jigmi Phunchok Bhutia vs Aishwarya Rai And Another
2021 Latest Caselaw 37 Sikkim

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                             WP (C) No. 26/2021

JIGMI PHUNCHOK BHUTIA                                       PETITIONER (S)
                                      VERSUS
AISHWARYA RAI AND ANR.                                      RESPONDENT (S)


For Petitioner          :     Mr. Nilanjan Bhattacharjee, Advocate
                              Mr. Souri Ghosal, Advocate
                              Mr. Amresh Kumar Mandal, Advocate

For respondent no.1     :     Mr. N.B Khatiwada, Senior Advocate.
                              Ms. Navtara Sarda, Legal Aid Counsel.

For respondent no.2     :     None.


Date: 03/08/2021

CORAM :

       HON'BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI, CJ.
                                ...


                            O R D E R ( O R A L)

Being aggrieved by the Order dated 10.09.2019 passed by learned Senior

Civil Judge, East Sikkim at Gangtok in Title Suit No. 39/2014 allowing the

application filed under Order VI Rule 17 of the Code of Civil Procedure, 1908, for

short, CPC, seeking amendment to the plaint, this writ petition has been

preferred.

2. Learned Counsel representing the petitioner contends that the application

under Order VI Rule 17 CPC allowed by the trial Court is by ignoring the order

dated 29.03.2019 of this Court in C.R.P. No. 05/2018 in the same suit. It is

urged that with altogether identical pleadings earlier an application for

amendment was filed by the plaintiff which was allowed by the Trial Court vide

order dated 14.05.2018. The said order was assailed in C.R.P. No. 05/2018. This

Court vide order dated 29.03.2019 set aside the order of allowing the

amendment, as the Counsel for the plaintiff/ respondent no.1 has conceded

before the High Court that the Trial Court has not followed the procedure

prescribed by law, therefore, if the order of the trial Court is being set aside,

they have no objection. While passing the said order leave was not prayed for or

granted, to apply afresh for the amendment. In absence thereto, the order

passed subsequently by filing a subsequent amendment application, with the

identical pleadings cannot be allowed by the order impugned, therefore, the

Trial Court committed illegality much less an error of jurisdiction while passing

the order impugned.

3. On the other hand, learned Senior Counsel representing the plaintiff/

respondent no.1 without defending the said issue made an attempt to satisfy

this Court that after remand necessary parties have been joined, therefore, the

amendment is necessary to adjudicate the issue and the Trial Court has not

committed any error while passing the order. Reliance has been placed on the

order of this Court in Malika Rai vs. Siri Bahadur Bhujel & Ors. passed in

WP(C) No.43/2018 on 01.03.2021. It is inter alia further contended that

looking to the merits of the suit, amendment is necessary, therefore, it may be

allowed.

4. After having heard learned Counsel for the parties, it is not disputed by

the Counsel for the plaintiff/respondent no.1 that the application previously filed

which was allowed by the Trial Court vide order dated 14.05.2018 and the

application subsequently filed which is allowed by the impugned order dated

10.09.2019 is altogether identical in nature except two paragraphs. It is also not

disputed that in the previous round when the application for amendment was

allowed by the Trial Court the defendant preferred C.R.P. No.05/2018 in the

same proceedings (Suit) and this Court vide Order dated 29.03.2019 allowed

the Revision and set aside the Order passed by the Trial Court. The Order is

important, therefore, the relevant portion of the Order is reproduced thus:

"It is submitted by learned Counsel for the Petitioner that the suit had been filed under Section 34 of the Specific Relief Act, 1963 with specific prayers for declaration. The learned Appellate Court while remanding the case had specified in its order that the matter was being remanded back to the learned trial Court for impleading the legal heirs of Late Sonam Topden Bhutia as Defendants in the suit. It was further ordered that the suit shall be readmitted in its original

number and if need be the Appellant/Plaintiff, shall be allowed to amend her pleadings. That the order is a speaking order and amendment was allowed only to the extent required after impleading the necessary parties. However, the Respondent No.1 inserted the amendments as delineated supra over and above the order of the learned Appellate Court or the provisions of law, hence the order of the learned Civil Judge be set aside.

Learned Counsel for the Respondent No.1 on the other hand fairly conceded that the procedure prescribed by law was not adhered to, consequently he has no objection if the order of the learned Civil Judge is set aside in the afore- stated circumstances.

Considered submissions.

In view of the learned Counsel for the Respondent No.1 having conceded to the position of law, the impugned order dated 14.05.2018 passed by the learned Civil Judge, East Sikkim at Gangtok is set aside.

The stay granted by this Court vide order dated 28.06.2018 stands vacated.

C.R.P. No. 5 of 2018 disposed of accordingly.

In view of the above, I.A. No.1 of 2018 also stands disposed of."

5. On perusal, it is apparent that after passing the judgment of remand by

the Lower Appellate Court directing to implead the legal heirs of late Sonam

Topden Bhutia as defendants in the suit and the plaintiff was allowed to amend

the pleadings to the extent required after impleading the necessary parties. The

Court observed that the plaintiff/respondent no.1 inserted the amendments over

and above the order of the learned Appellate Court or the provisions of the law,

as per the submissions of the defendant. On the said submission Counsel for the

plaintiff/respondent no.1 has conceded before the Court that the procedure

prescribed by law was not adhered to, however, having no objection if the order

of the Civil Judge dated 14.05.2018 allowing the amendment may be set aside.

6. Considering the aforesaid and considering the position of law, the High

Court set aside the order dated 14.05.2018. The consequent net result was the

amendment which was proposed in the earlier round of litigation allowed by the

Trial Court vide Order dated 14.05.2018 was set aside.

7. Subsequently, another application was filed by the plaintiff/respondent

no.1 which was allowed by the impugned order dated 10.09.2019 inter alia

observing that the trial has not commenced and the necessary party have been

added as defendant against whom the relief is claimed, therefore, the Court

found no harm in allowing the said application.

8. As argued by the Counsel for the petitioner that once an application

seeking amendment filed earlier allowed by the Trial Court, the said order has

been set aside by the High Court without granting any leave to bring the same

pleadings by way of an amendment, however, it cannot be inserted by the

impugned order. As discussed hereinabove that except two paragraphs of the

subsequent application the other remaining paragraphs of the proposed

amendment as brought by the plaintiff in the application which is allowed by the

order impugned is identical in word to word.

9. It is to observe here that the pleadings proposed for amendment by way

of previous application if not permitted to be incorporated by the order of the

Court in view of the order of C.R.P. No.05/2018 dated 29.03.2019 the same

pleading cannot be permitted to be incorporated by a subsequent order of the

Trial Court. As from the aforesaid quoted order of the High Court it is clear that

the plaintiff/respondent no.1 was not permitted to file a fresh application

granting leave. However, the issue which has been decided previously by the

order of the Court rejecting the application for amendment as per the

concession given by the plaintiff/respondent no.1 itself cannot be directed to be

allowed by the Trial Court on filing subsequent application. The order of Malika

Rai (supra) as relied by the learned Senior Counsel for respondent no.1 is on

the merit of the case, not on the issue as referred above.

10. Learned Senior Counsel appearing on behalf of the plaintiff/respondent

no.1 contends that the concession given in the previous order before this Court

was because the leave was not prayed for before the Trial Court. The said

argument is bereft of any merit looking to the provision of Order VI Rule 17

CPC. On perusal thereto it is clear that at any stage of the proceedings the

Court may allow either party to alter or amend the pleadings as may be

necessary for the purpose of determining the real questions in controversy

between the parties on such terms as may be just. Therefore, it is the discretion

of the Court by allowing an application to amend the pleadings or not. It cannot

be on the leave of the Court.

11. It is to further observe that in the order of Civil Revision Petition No.05/

2018 by making a concession of the Counsel it is nowhere mentioned that the

said concession is because of not seeking leave, therefore, the argument as

advanced cannot be accepted and meritless. Therefore, in the opinion of this

Court, the trial Court had committed illegality, much less an error of jurisdiction

to allow subsequent similar application for amendment ignoring the order of this

Court.

12. In view of the foregoing discussions, this writ petition is hereby allowed

and the Order impugned is hereby set aside.

13. It is to observe here that looking to the Judgment of remand passed by

the lower Appellate Court dated 25.09.2017 affirmed by this Court in FAO No.

03/2018 vide order dated 06.03.2021, on joining Sonam Topden Bhutia as

defendant in the suit and other legal heirs, on readmitting, the amendment to

the extend required after impleadment can be permitted, if prayed by the

plaintiff. Therefore, with the said observation the plaintiff/ respondent no.1 is

permitted to amend afresh. It is further made clear here that if any pleading

proposed by way of an amendment application relating to the newly added

defendants and newly added legal heirs is overlapping to the pleadings of the

subsequent application or of previous application it would not be an impediment

to reject such application because it is in consequence to the Judgment of

remand which is affirmed by this Court.

Chief Justice

jk/avi