Jigmi Phunchok Bhutia vs Aishwarya Rai And Anr

Jitendra Kumar Maheshwari, CJ

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.

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.

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.

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.â€​

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.

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.

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.

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.

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.

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.

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.

In view of the foregoing discussions, this writ petition is hereby allowed and the Order impugned is hereby set aside.

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.