Sikkim High Court: Jitendra Kumar Maheshwari, CJ., allowed a petition which was filed aggrieved by the order allowing the application filed under Order VI Rule 17 of the Code of Civil Procedure, 1908, seeking amendment to the plaint.
Counsel for the petition, Mr Nilanjan Bhattacharjee, Mr Souri Ghosal and Mr Amresh Kumar Mandal contended that the application under Order VI Rule 17 CPC allowed by the trial Court was by ignoring the order dated 29-03-2019 of this Court in C.R.P. No. 05 of 2018 in the same suit. It was urged that with altogether identical pleadings earlier an application for amendment was filed by the plaintiff which was allowed by the Trial Court. The said order was assailed in C.R.P. No. 05 of 2018. This Court had set aside order of allowing the amendment, as the Counsel for the plaintiff/ respondent 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.
Counsel for the plaintiff/ respondent 1, Mr N.B Khatiwada, Senior Advocate and Ms Navtara Sarda, Legal Aid Counsel 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.
The Court was of the view that the facts of the case were not disputed. It was further stated that it was 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 1 inserted the amendments over and above the order of the Appellate Court or the provisions of the law, as per the submissions of the defendant. On the said submission Counsel for the plaintiff/respondent 1 had 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.
The Court observed 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.
The Court while allowing the petition held that e trial Court had committed illegality, much less an error of jurisdiction to allow subsequent similar application for amendment ignoring the order of this Court.[Jigmi Phunchok Bhutia v. Aishwarya Rai, WP (C) No. 26 of 2021, decided on 03-08-2021]
Suchita Shukla, Editorial Assistant has reported this brief.
