Sikkim High Court
Ashok Tshering Bhutia vs The Divisional Forest Officer (T) ... on 10 August, 2022
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Extra Ordinary Jurisdiction)
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SINGLE BENCH: HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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W.P. (C) No. 37 of 2022
Shri Ashok Tshering Bhutia,
Son of Late A.C. Bhutia,
Resident of Tibet Road,
Gangtok, Sikkim
..... Petitioner
Versus
1. The Divisional Forest Officer (T),
Department of Forest, Environment & Wildlife Management,
South Division,
Namchi, South Sikkim.
2. The PCE-cum-Secretary,
Department of Forest, Environment & Wildlife
Management,
Government of Sikkim,
Gangtok, Sikkim.
3. The Secretary,
Energy and Power Department,
Government of Sikkim,
Gangtok, Sikkim.
4. Sub Registrar/Sub Divisional Magistrate,
Office of the District Collector,
Namchi, South Sikkim.
..... Respondents
Application under Article 227 of the Constitution of India.
(Impugned order of the learned District Judge, South Sikkim at Namchi
dated 20.07.2022 rejecting the application dated 04.06.2022 for amendment
of plaint filed by the petitioner under Order VI Rule 17 read with section 151
of the Code of Civil Procedure, 1908 and application dated 04.06.2022
seeking leave of the Hon'ble Court to file written statement to the counter
claim of the respondent nos. 1 and 2 under Order VIII Rule 6A (3) read with
section 151 of the CPC)
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Appearance:
Mr. T. B. Thapa, Senior Advocate with Mr. Ranjan Chettri
Advocate for the Petitioner.
2
W.P. (C) No. 37 of 2022
Shri Ashok Tshering Bhutia. vs. The Divisional Forest Officer (T) & Ors.
Dr. Doma T. Bhutia, Additional Advocate General, Mr. S.K.
Chettri, Government Advocate and Mr. Shakil Raj Karki,
Assistant Government Advocate for the Respondents.
10.08.2022
O R D E R (ORAL)
Bhaskar Raj Pradhan, J.
1. This is an application under Article 227 of the
Constitution of India seeking to invoke the supervisory
jurisdiction of this court to assail the impugned order dated
20.07.2022 rejecting the application for amendment of
plaint filed by the petitioner under Order VI Rule 17 read
with section 151 of the Code of Civil Procedure, 1908 (CPC)
as well as an application seeking leave to file written
statement to the counter claim of the respondent nos.1 and
2 under Order VIII Rule 6 A (3) read with section 151 of the
CPC.
2. Heard Mr. T.B. Thapa, learned Senior Counsel for the
petitioner at the admission stage. The learned Senior
Counsel took this court to the impugned order as well as
the provisions of law involved and submitted that this is a
fit case in which the supervisory jurisdiction of this court
ought to be invoked to render justice to the petitioner who
suffers the consequence of the impugned order. The
learned Senior Counsel also relied upon the judgment of
the High Court of Judicature at Madras dated 28.01.2022
in M/s. CSCO LLC vs. M/s. Lakshmi Sarawathi Spintex Limited
W.P. (C) No. 37 of 2022
Shri Ashok Tshering Bhutia. vs. The Divisional Forest Officer (T) & Ors.
& Ors.1 in Application No. 4791 of 2021 in C.S. No. 697 of
2017.
3. In CSCO LLC (supra) the High Court of Judicature at
Madras held that when it comes to filing a written
statement for a counter claim, the same is specifically dealt
with under Order VIII Rule 6 A (3) CPC. In such cases, the
duty has been cast upon the court to fix the time limit.
While fixing such time limits, the court is guided by Order
VIII Rule 9 of CPC, wherein the court can fix a time limit of
not more than 30 days for presenting the written statement
for a counter claim. Even though leave is not required for
filing a written statement for the counter claim, since it is a
matter of right for the plaintiffs, the court can always fix a
time limit for filing such a written statement. Hence, when
a counter claim is filed by the defendants, the court has to
specifically pass an order while taking the counter claim on
file, directing summons to be served on the plaintiffs or if
the plaintiff is represented by a counsel, directing the
counsel to accept service of summons on behalf of the
plaintiff. The time limit for filing a written statement for the
counter claim will commence only thereafter.
4. The issue before the High Court of Judicature at
Madras in CSCO LLC (supra) was whether it should condone
the delay of 563 days in filing the written statement of the
MANU/TN/4089/2022
W.P. (C) No. 37 of 2022
Shri Ashok Tshering Bhutia. vs. The Divisional Forest Officer (T) & Ors.
plaintiff for the counter claim filed by the defendants. The
facts and circumstances giving rise to the present
application under Article 227 of the Constitution of India
before this court is however different.
5. Before this court determines the issue involved in the
present petition it may be pertinent to mention a few fact
for clarity. The present petition arises out of a proceeding
pursuant to the order passed by this court dated
12.04.2022 in RFA No 09 of 2020 preferred by the
respondents against the judgment dated 24.12.2019
rendered by the learned District Judge in Title Suit No. 02
of 2017. While examining the appeal this court thought it
fit to invoke the provisions of Order XLI Rule 25 CPC and
framed three additional issues for examination. It was
directed that the learned District Judge shall examine the
additional issues in terms of Order XLI Rue 25 CPC,
conduct a trial to ascertain the issues, take additional
evidence, if required, and return the evidence to this court
together with its finding thereof and the reasons thereof
within a period of six months from the date of the first
appearance of the parties as directed. Thus, it would be
clear that the appeal filed by the respondents is pending
determination before this court whilst certain issues which,
were found relevant but not considered was directed to be
considered by the learned District Judge. It is at this stage
W.P. (C) No. 37 of 2022
Shri Ashok Tshering Bhutia. vs. The Divisional Forest Officer (T) & Ors.
of the proceedings, after the learned District Judge was
directed to examine those specific additional issues, the
petitioner though it fit to move the two applications as
aforesaid.
6. By the first application the petitioner sought to make
various amendments to the plaint as specified therein. The
amendments proposed were as follows:
"After paragraph 12 of the plaint, following paragraphs
may be inserted:
12A. That the suit land was wrongly recorded in the
name of Hari Krishna Sharma under the Survey of
1950-52 and ought to have been recorded in the name
of his father Bishnu Prasad Sharma.
12B. That during the Survey Operations of 1950-52,
Hari Krishna Sharma, Son of Bishnu Prasad Sharma
was a minor.
12C. That similarly, the area of the land was also
wrongly recorded as 1.10 acres instead of 4.33 acres
under the said survey.
12D. That the records of the Survey Operations of 1950-
52 were never attested and hence there was no
opportunity to correct the wrong recording of the name
as well as the area in the Record of Rights of the Survey
Operations of 1950-52.
12E. That Bishnu Prasad Sharma was the absolute
owner-in-possession of 4.33 acres of land in the
concerned area and his ownership and possession of
4.33 acres of land was recognised and consequently
recorded in his name when the subsequent Survey
Operations of 1979-83 came to the area.
12.F. That the Record of Rights of the Survey Operations
of 1979-1983 has since been attested.
12.G. That the area of land under the absolute
ownership and possession of Bishnu Prasad Sharma
was the same right from and even prior to the time
when the Survey Operations of 1950-52 came to the
area and which was subsequently substantiated by the
Survey Operations of 1979-83.
12.H. That Bishnu Prasad Sharma had all along been in
absolute ownership and possession of 4.33 acres of
land in the concerned area till he sold the same
subsequently to Shri Ong Tshering Bhutia S/o Late
Inchung Tok tok.
........"
W.P. (C) No. 37 of 2022
Shri Ashok Tshering Bhutia. vs. The Divisional Forest Officer (T) & Ors.
7. The next application under Order VIII Rule 6 A (3)
sought to urge the learned District Judge to permit the
petitioner to file a written statement to the counter claim
filed by the respondents. The argument of the learned
Senior Counsel for the petitioner was that the language of
the provision was clear and it was incumbent upon the
learned District Judge to fix a period by which the
petitioner may file a written statement and that having not
been done during the trial permission should be granted to
them to do so now. The learned District Judge examined
both these applications and pronounced the impugned
order dated 20.07.2022.
8. This court has examined the impugned order so
rendered which is quite detailed examining various
provisions of the law and the facts of the case after which
the learned Judge concluded that both the applications
ought to be rejected.
9. Both these applications have been filed after the
conclusion of the trial on completion of pleadings, framing
of issues, examination and cross-examination of respective
witnesses and judgment rendered. This judgment is yet to
be reconsidered in the respondent's statutory appeal. The
petitioner has not filed any appeal aggrieved by any part of
the judgment impugned in the respondent's appeal. What
was not done at an appropriate stage by the petitioner is
W.P. (C) No. 37 of 2022
Shri Ashok Tshering Bhutia. vs. The Divisional Forest Officer (T) & Ors.
sought to be done now when the learned District Judge had
limited jurisdiction to determine only the additional issues
framed by this court. This is not permissible. The
additional issues were framed by this court on
consideration of the pleadings of the parties. Amending the
plaint at this stage would not be necessary to determine the
controversy. The three additional issues framed by this
court was directed to be considered by the learned District
Judge on the pleadings of the respondents in their written
statement as well as counter claim although no written
statement was filed by the petitioner to the counter claim.
The onus to prove the three additional issues were then put
upon the respondents. Therefore, the necessary pleadings
are available with the learned District Judge to determine
the additional issues. The attempt to file written statement
under Order VIII Rule 6 A (3) CPC would gravely affect the
rights of the respondents. That would defeat the very
purpose for which the additional issues had been framed
by this court. Moreover, in the limited jurisdiction for which
the matter was sent back to the learned District Judge it
was impermissible to allow such applications which were
thus rightly rejected.
10. The supervisory jurisdiction of this court under Article
227 of the Constitution of India is not meant to interfere in
the administration of justice by the trial court at every
W.P. (C) No. 37 of 2022
Shri Ashok Tshering Bhutia. vs. The Divisional Forest Officer (T) & Ors.
stage but to correct gross errors or perversity in the orders
passed. The impugned order passed by the learned District
Judge is neither grossly erroneous nor perverse. It is well
settled that judicial control of the High Court over the
District judiciary ought to be invoked to keep it within the
limits of their authority. The power may be exercised in
cases occasioning grave injustice or failure of justice. The
petitioner has not been able to demonstrate how the
impugned order has caused any grave injustice to him. The
applications filed by the petitioner were misconceived and
rightly rejected. In view of the same this court is of the firm
view that this petition does not deserve further examination
and therefore dismissed with no orders as to cost.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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