WP (C) No. 43/2018
MALIKA RAI PETITIONER (S)
VERSUS
SIRI BAHADUR BHUJEL & ORS. RESPONDENT (S)
For petitioner : Mr. A. Moulik, Sr. Advocate.
Mr. Ranjit Prasad, Advocate.
For respondent no.1 : Mr. N. Rai, Sr. Advocate.
Ms. Sudha Sewa, Advocate.
For respondents no. : Mr. Sujan Sunwar, Asst. Govt. Advocate.
2 to 4
Date: 01/03/2021
CORAM :
HON'BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI, CJ.
...
Invoking jurisdiction of Article 227 of the Constitution of India and
assailing the order dated 01.08.2018 passed by the learned Civil Judge,
East Sikkim at Gangtok in T.S. Case No. 03/2018 allowing the application
filed by the plaintiff, plaintiff seeking amendment under Order VI Rule 17
read with Section 151 of the Civil Procedure Code, 1908, this petition has
been preferred.
Learned Counsel for the defendant/ petitioner contends that by
way of proposed amendment, allowed and permitted to be incorporated
by the Learned Trial Court, the boundaries of the property which is in
question has been substantially changed therefore, it would amounting to
change of nature of the property and suit to which a decree is sought, in
such a circumstance the order passed by the learned Civil Judge and in
particular reasonings so assigned is not justifiable. Therefore, the order
passed by the learned Trial Court may be set aside. Learned counsel
placed reliance on a case of Smt. Krishna vs. Smt. Laila Begum &
others reported in 2012 SCC OnLine P & H 23869 of Punjab & 2
Haryana High Court contending that in a similar circumstances the Court
refused to entertain the application seeking amendment. In view of the
forgoing it is asserted that, the order passed by the learned Civil Judge is
in access to the jurisdiction not conferred on him as per the provisions of
Order VI Rule 17 CPC, therefore, such an order may be set aside.
On the other hand, learned counsel representing the plaintiff/
respondent submits and has argued in support of the order passed by
the learned Trial Court, inter alia, contending that the suit is at its initial
stage and the trial has not yet commenced and the defendant/petitioner
is having right to make consequential amendment in the written
statement, therefore, looking to the stage of the case, which is at initial
stage, the amendment in pleading if allowed would not prejudice the
right of the defendant. Therefore, the order passed by learned Trial Court
exercising the power under Order VI Rule 17 CPC is as per Rules.
Therefore, interference by this Court in exercise of power under Article
227 of the Constitution of India is not warranted.
Having heard learned counsel for both the parties and on perusal of
the facts of the case, it appears that the change of the boundaries has
been proposed by amending the pleadings of the suit. Undisputedly the
suit is at initial stage and the trial has not yet commenced, and the
defendant is having right to dislodge the pleadings of the plaintiff by
consequential amendment in the written statement. It is settled law the
Court cannot comment on the merits of the case at the time of
considering the application for amendment. Therefore, the proposed
amendments as allowed by the Trial Court directing to incorporate it, do
not warrant interference in exercise of the power under Article 227 of the
Constitution of India at this stage.
3
It is suffice to observe that the defendant/petitioner is having right
to make all consequential amendment in the written statement and take
their defence whatever is permissible under the law.
At this stage it is suffice to observe the judgment of Smt. Krishna
(supra) of Punjab & Haryana High Court in which 12 opportunities to led
evidence were granted to the plaintiff for recording their evidence, in
which the trial was commenced. Therefore, the order so passed by the
Punjab & Haryana High Court is of no help to the petitioner.
In view of the forgoing discussion and for the reasons stated
hereinabove, in the opinion of this Court interference in this petition is
not warranted. Accordingly, it is dismissed without any order as to cost.
Chief Justice jk/avi
