JIGMI PHUNCHOK BHUTIA Vs. AISHWARYA RAI

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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 v. Siri Bahadur Bhujel and 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.