KARMA DENKA BHUTIA Vs. SARKI LAMU

JUDGEMENT

(1.) This is an application filed on behalf of the plaintiffs-appellants for amendment of the plaint. The second appeal out of which this applicant arieses is directed against the reversing decree at learned District Judge, Special Division -I, Sikkim at Gangtok dismissing the plaintiffs applicants' suit for declaration of title, injunction in respect of a two storied wooden house situated at Rongli Bazar, East Sikkim. The appea,! has been admitted and the contesting defendants-respondents have entered their& appearance.

(2.) The case as made out in this application for amendment is that the contesting defendants/respondents in collusion with one Lakpa Sherpa (Sardar) who was the tenant under the plaintiffs-appellants demolished the entire wooden house and constructed illegally a R.C.C. structure thereon. During the pendency of the suit the plaintiffs-appellants filed an application for injunction to restrain defendants/respondents from continuing the illegal activities over the suit premises. The trial Judge initially passed an interim injunction which was later vacated. Taking advantage of the vacation of the injunction, the defendants/respondents constructed a R.C.C. structure on the entire portion covering the wooden house. Therefore, in the changed circumstances it is necessary to amend and bring the fact on to the record regarding the new construction made during the pendency of the suit. The proposed amendment is to insert the following in the plaint:

(3.) The defendants/respondents have filed their objection to the prayer for amendment on the grounds inter alia that the prayer is made at a belated stage and if such prayer is allowed the right accrued to them with passage of time would be defeated.