Sikkim High Court
Shri Mahesh Agarwal vs Shri Umesh Agarwal And Anr on 1 August, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
DATED : 1st August, 2024
-------------------------------------------------------------------------------------------------------
SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
-------------------------------------------------------------------------------------------------------
WP(C) No.37 of 2023
Petitioner : Mahesh Agarwal
versus
Respondents : Umesh Agarwal and Another
Petition under Article 227 of the Constitution of India
-------------------------------------------------------------------------------------------------------
Appearance
Mr. N. Rai, Senior Advocate with Mr. Pradeep Tamang, Ms. Tara Devi
Chettri and Ms. Prescilla Rai, Advocates for the Petitioner.
Mr. Jorgay Namka, Senior Advocate with Mr. Lahang Limboo,
Advocate for the Respondent No.1.
Mr. S. K. Chettri, Government Advocate for the Respondent No.2.
-------------------------------------------------------------------------------------------------------
JUDGMENT (ORAL)
Meenakshi Madan Rai, J.
1. The Petitioner is aggrieved by the Order, dated 06-07-
2023, passed by the Court of the Learned Principal District Judge,
at Gangtok, Sikkim, in Title Appeal No.03 of 2021, Umesh Agarwal
vs. Mahesh Agarwal and Another by which the amendment sought
by the Appellant (Respondent No.1 herein), at the appellate stage,
was permitted by the said Court, being the First Appellate Court.
2. Learned Senior Counsel contended that the order
caused severe prejudice to the Petitioner and to the cause of
justice. The attention of this Court was drawn to Paragraph 18 of
the application under Order VI Rule 17 of the Code of Civil
Procedure, 1908 (hereinafter, the "CPC"), filed by the Respondent
No.1, as the Appellant, before the Court of Learned District Judge,
East Sikkim, at Gangtok. That, as per Paragraph 18 of the said
Mahesh Agarwal vs. Umesh Agarwal and Another 2
application the following amendments were proposed by the
Respondent No.1;
"18. That the proposed amendments sought by the
applicant/plaintiff is as follows:-
a. To amend the grounds (e) of the appeal by
replacing with "For that through the instant appeal
the appellant is challenging the finding of the Ld.
Trial Court in regard to issues No.1 to 7 (instead upto
9), 13 to 16. In the impugned judgment."
b. To amend the prayer (b) of the plaint which reads
as "decree declaring that the plaintiff, besides his
acquiring the rights and authority of the Performa
defendant following payment of its dues has the right
to recover the debt incurred by him to the tune of
Rs.20.5 lacs from and out of the properties owned by
the joint family as described in the schedule below."
to "decree declaring that the plaintiff, besides his
acquiring the rights and authority of the Performa
defendant following payment of its dues has the right
over the properties in item no.4 and 8 in the
Schedule which were released by payment of the
dues".
c. To amend the prayer no. (d) which reads as
"decree declaring that the plaintiff is entitled to
recover from the defendant ½ of the sum of Rs.20.5
lacs and interest thereon at the rate of 18% per
annum." To "decree declaring that the plaintiff is the
absolute owner of the properties released by the
Plaintiff after payment of dues i.e. item no.3, 4, 7 and
8 of the Schedule Property."
(i) That, this Court vide its Judgment, dated 14-12-2020,
in RSA No.05 of 2019, Mahesh Agarwal and Others vs. Umesh
Agarwal and Others, had specified which of the disputed properties
belonged to the Petitioner and to the Respondent No.1. That, Item
Nos.4, 8, 11 and 12 of Schedule "A" to the Plaint of the Title Suit
No.21 of 2013, were allotted to the share of the Petitioner herein
and Item Nos.2, 3, 7 and 10 of Schedule "A" to the Plaint of the
Title Suit No.21 of 2013, fell in the share of the Respondent No.1
herein. That, this has been specifically detailed in Paragraph 31 of
the Judgment of this Court dated 14-12-2020, in RSA No.05 of
2019. That, in light of the said declarations in the said Judgment,
the amendments sought would be in contradiction thereof as once
the ownership of the properties have been determined by this
Mahesh Agarwal vs. Umesh Agarwal and Another 3
Court, the Respondent No.1 cannot lay claim to the properties that
fell in the share of the Petitioner.
3. Learned Senior Counsel for the Respondent No.1
concedes that the amendments sought and extracted hereinabove
do not clearly lay down the intent of the Respondent No.1, which in
fact was not to claim the properties of the Petitioner herein but to
make him repay his share of the Rs.20.50 lakhs (Rupees twenty
lakhs and fifty thousand) only, that the Respondent No.1 had
deposited with the Respondent No.2 herein (SIDICO), in order to
redeem the properties that were put forth as collateral when loan
was taken from the Respondent No.2 by the Petitioner, the
Respondent No.1 and their late father for business purposes.
4. Learned Government Advocate for the Respondent
No.2 had no submissions to make in this context.
5. Having heard Learned Counsel for the parties in
extenso and given due consideration to the submissions, I have to
opine that whatever be the intent of the Respondent No.1, however
from a reading of the proposed amendments of the Respondent
No.1 as put forth in the application under Order VI Rule 17 of the
CPC, at Paragraph 18 (supra) already referred to, the proposals are
preposterous. This Court vide its Judgment in RSA No.05 of 2019,
dated 14-12-2020, has already determined the division of the
properties which have been elucidated at length in the Judgment.
The Respondent No.1 cannot now lay claim innocuously to the
properties viz. Item Nos.4 and 8 found to be that of the Petitioner,
by way of the proposed amendments. The Learned First Appellate
Court in my considered view has failed to take into consideration
this aspect of the matter.
Mahesh Agarwal vs. Umesh Agarwal and Another 4
6. The Petition is consequently considered and allowed
and the Order of the Learned First Appellate Court dated 06-07-
2023, in Title Appeal No.03 of 2021, is quashed and set aside.
7. Copy of this Judgment be forwarded to the Learned
First Appellate Court for information.
( Meenakshi Madan Rai )
Judge
01-08-2024
Approved for reporting : Yes
sdl
