JIGMI PHUNCHOK BHUTIA Vs. MISS AISHWARYA RAI

JUDGEMENT

(1.) This judgment shall dispose of two petitions filed under Article 227 of the Constitution of India. W.P. (C) No.38 of 2021 seeks to assails the order dtd. 25/9/2021 passed by the learned Civil Judge, East Sikkim at Gangtok in Title Suit No.39 of 2014. By the Order dtd. 25/9/2021 the learned Civil Judge disallowed the application filed by the petitioner to exempt him from paying the cost imposed for the failure to file written statement to the amended plaint filed by the respondent no.1. W.P. (C) No. 19 of 2022 assails the order dtd. 21/3/2022 passed by the learned Civil Judge, East Sikkim at Gangtok in the same suit by which an application under Order 1 Rule 10 (4) CPC filed by the respondent no.1 was allowed in toto.

(2.) At this juncture it would be relevant to note certain facts crucial for deciding these petitions. In the year 2014 the respondent no.1 filed a suit for declaration of title. It was the respondent No.1's claim that she is the daughter of late Sonam Topden Bhutia and accordingly a declaration was sought to the effect. A further declaration was also prayed that she should be called Aishwarya Bhutia daughter of late Sonam Topden Bhutia in all her official documents. The suit was filed against the general public. By a judgment dtd. 24/7/2015 the learned Civil Judge dismissed the suit. In an appeal filed by the respondent no.1 on 22/7/2016 the learned District Judge found that the petitioner was a necessary party as he would be directly affected by the outcome of the case and added him as a defendant. Subsequently on 25/9/2017 the learned District Judge held that given the nature of the suit and the reliefs prayed for there could be no doubt that the petitioner, the respondent no.1 and other legal heirs ought to have been arrayed as parties in the suit as they were necessary parties. The impugned judgment of the trial court of the learned Civil Judge rendered in the absence of necessary parties was set aside and the matter remanded for impleading the legal heirs of late Sonam Topden Bhutia as defendant in the suit. The respondent no.1 who was the plaintiff in the suit was allowed to amend her pleadings to the extent required. On 9/11/2017 the respondent no.1 filed the amended plaint. On 14/5/2018 the amended plaint filed by the respondent no.1 was accepted by the Trial Court dismissing the objection raised by the petitioner that the amended plaint sought to change the nature and character of the original suit. The learned Civil Judge held that the suit was remanded with permission to make all necessary changes after impleading the necessary parties which meant that the respondent no.1 could also claim the properties which had come to their knowledge subsequently lest it is barred by law. It interpreted the term "extent required" used by the learned District Judge in the remand order to be a broad term which would permit such an amendment. Accordingly, the objection filed by the petitioner was dismissed. The same order dtd. 14/5/2018 also referred to an application under Order 6 Rule 17 and Order 7 Rule 14(3) filed by the petitioner which was decided to be heard subsequently. On 8/6/2018 these applications were considered and allowed. On 29/3/2019 this court in CRP No. 05 of 2018 examined the order dtd. 14/5/2018 passed by the learned Civil Judge. The respondent no.1 conceded that the procedure prescribed by law had not been adhered to and therefore, he had no objection if the order is set aside. Accordingly, the order dtd. 14/5/2018 passed by the learned Civil Judge was set aside. An application for withdrawal of plaint under Order 23 Rule 1 (3) of the CPC filed on 27/5/2019 by the respondent no.1 was rejected by the learned Civil Judge on 28/6/2019. Thereafter, on 9/7/2019 the respondent no.1 filed an application under Order 6 Rule 17 for amendment. By this application various amendments were sought for including additional facts and additional prayers which, according to the petitioner, would change the nature and character of the original suit itself. It included prayers with regard to various properties which was not the subject matter of the original suit. On 10/9/2019 this application under Order 6 Rule 17 CPC was allowed by the learned Civil Judge. On 23/9/2019 the respondent no.1 filed the amended plaint and the learned Civil Judge fixed the date 1/10/2019 for filing amended written statement. On 1/10/2019 instead of filing the amended written statement as directed the petitioner chose to file an application under Order 39 Rule 1 and 2 CPC. The learned Civil Judge granted the petitioner further time till 14/10/2019 to file the amended written statement as a final opportunity and observing that failure to do so would entail a cost of Rs.10,000.00 for trying to delay the matter. Since, the learned Civil Judge did not preside over the court on 14/10/2019 the matter was taken up on 17/10/2019 on which date the petitioner filed yet another application under Order 7 Rule 10 (4) CPC challenging the pecuniary jurisdiction of the learned Civil Judge. The learned Civil Judge also passed an order on the same date reminding the learned counsel for the petitioner about the cost imposed upon them on 1/10/2019 and directed them to either comply with the order or file an appropriate application on the next date. On 5/11/2019 the petitioner filed an application seeking exemption from paying the cost imposed. On 7/11/2019 the petitioner's appeal being FAO No 3 of 2018 against the order dtd. 25/9/2017 passed by the learned District Jude, Special Division-I was admitted and further proceedings in the suit was suspended. On 6/3/2021 this court dismissed the appeal preferred by the petitioner and the order passed by the learned District Judge was upheld with the observation that the parties were at liberty to take recourse of law as permissible while deciding the suit afresh on its restoration. On 3/8/2021 W.P. (C) No. 26 of 2021 challenging the order dtd. 10/9/2019 passed by the learned Civil Judge allowing the application under Order 6 Rule 17 CPC seeking amendment of the plaint was allowed and the order dtd. 10/9/2019 was set aside. This court further observed that considering the judgment of the learned District Judge dtd. 25/9/2017 which was affirmed by this court on 6/3/2021 in FAO No. 3 of 2018 the legal heirs of late Sonam Topden Bhutia should be impleaded as defendants in the suit and amendment for the said purpose to the extend required can be permitted if prayed by the respondent no.1. With the said observation this court permitted the respondent no.1 to amend the plaint afresh. On 6/8/2021 the learned Civil Judge noted the order passed by this court on 3/8/2021 in W.P. (C) No. 26 of 2021. The learned Civil Judge granted time to the respondent no.1 to file objection to the application filed by the petitioner for exemption in paying the cost imposed. The objection was filed on 25/8/2021, matter heard on 13/9/2021 and on 25/9/2021 the order impugned in W.P. (C) No. 38 of 2021 was passed. Thereafter, on 28/12/2021 the respondent no.1 filed an application under Order 1 Rule 10 (4) read with sec. 151 CPC praying for various amendments once again not only adding the legal heirs of late Sonam Topden Bhutia as necessary parties but also seeking to amend the entire suit with various pleadings and praying for various reliefs. The application stated that subsequent to the filing of the suit certain new facts were revealed to the respondent no.1 which has a direct bearing on the outcome of the case and as such the respondent no.1 seeks to introduce a new cause of action which is arisen to the respondent no.1 during the pendency of the suit. It further averred that the respondent no.1 came to know that on 18/12/2015 that the properties belonging to her father late Sonam Topden Bhutia had been transferred to the names of the petitioner (defendant no.1, defendant no.2 and defendant no.3) and further that the Certificate of Identification of the defendant nos. 1 and 2 have been cancelled by the Additional District Magistrate, East and South Sikkim on the basis of a complaint filed by the respondent no.1. Thus, the respondent no.1 vide the application under Order 1 Rule 10 (4) CPC sought to change the cause title of the plaint making the petitioner, Angela Penzum Bhutia and Elimith Lepcha as necessary parties; to change the suit from a declaratory suit to a suit for ejectment, recovery of possession and other reliefs as well. It also sought to insert various paragraphs in the plaint necessary for grant of the prayers for ejectment, recovery of possession and other reliefs as well. The respondent no.1 also sought for the following:-

(3.) This application was allowed by the learned Civil Judge on the ground that the respondent no.1 had rightly filed an application under Order 1 Rule 10(4) CPC to amend the plaint upon impleading new defendants to the suit in the light of the orders passed by the court of the learned District Judge as well as this Court. The learned Civil Judge not only allowed the impleadment of the legal heirs of late Sonam Topden Bhutia but also allowed the respondent no.1 to amend the plaint from a suit for declaration to a suit of ejectment and recovery of possession of properties changing the nature and character of the original suit itself.