Point of Law: Application for amendment - Provision of Order VI Rule 17 CPC clear that at any stage of proceedings Court may allow either party to alter or amend pleadings as may be necessary for purpose of determining real questions in controversy between parties on such terms as may be just.

ORDER :

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 vs. Siri Bahadur Bhujel and Others, passed in W.P. (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.

4. 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