Decided on August 12,2010



- (1.) "Wheher amendment in the pleading is permissible after framing of issues, in view of provision to Rule 17 of Order VI of CPC?" is the core issue that arises for consideration in this writ petition. 1.1. The writ petitioners are the defendants No. 3 & 4 in Money Suit No. 02 of 2006 on the file of learned District Judge, East and North Sikkim at Gangtok, filed by the respondent/plaintiff in the suit for a decree against the writ petitioners/defendants No. 3 & 4 jointly and severally for a sum of Rs.38,78,283/- and for the pendente lite interest on the principal amount of Rs. 34,50,000/-. 1.2. The suit amount namely Rs. 38,78,283/- represents the advance paid by the respondent/plaintiff namely Rs. 34,50,000/- towards the consideration value viz. Rs. 69,00,000/- for purchase of the suit premises which includes the land and RCC building mentioned in the plaint, namely Plot No. 291 under Khatian No. 432 which was recorded as Maharaja Sir Tashi Namgyal; and a further sum of Rs.4,28,283/- representing the interest at the bank rate per annum from the date of payment i.e. 09-09-2002 till the filing of the suit, thus totalling Rs. 38,78,283/-.
(2.) 1 The writ petitioners/defendants No. 3 & 4 in the suit filed their written statement on 21-07-2006. The defendants Nos. 1 and 2 filed their written statement on 25-11-2006. In the light of the pleadings made by the respective parties in their plaint, the trial Court also framed the issues. But, before submitting the list of witnesses, the writ petitioners herein/defendants No. 3 and 4 filed an application on 02-09-2008, under Order VI, Rule 17 read with Section 151 of CPC, seeking permission to amend their joint written statement, for amending their pleadings in the written statement. 2.2 The relevant portion of the said application is extracted below : "7. That the Defendants (3 & 4) propose the following amendments - at Para 10 of the Written Statement, after the word - 'to make', the following sentences be inserted:- "the Defendants submit that there is an unreserved dispute between the State of Sikkim, and the Central Government with respect to the property of Maharaja of Sikkim, Maharaja Saheb, the Maharaja in Council, Sikkim Darbar and Private Estate. The averments made therein at Para 3 of the Plaint is not supported by any document. The plaintiff is put to prove the same strictly in accordance with Law. The defendants further submit that the land bearing Plot No. 291, the portion of which was leased out to the then Maharaja of Sikkim is still recorded in the name of Late Punya Prasad Pradhan, the late father of the defendants." 8. That the Defendants (3 & 4) propose the following amendments - at Para 11, after the word - "thereof, the following sentences be added - "That at the relevant, time the independent Country, i.e. Sikkim, took a Lease, of the property covered by Plot No. 291, Khatian No. 423, for a period of 51 years by duly executing a Lease Deed with certain terms and conditions. The tenure of the Lease Deed expired on 20-6-2004. After 20-6-2004, the State Government is in illegal possession of the scheduled premises for which the State Government must compensate the defendants by way of mesne profits and other compensation the defendants bring a Counter-Claim for their reliefs". 9. That at Para 12, after the word - "in process", the following sentences be inserted - "as stated above, Sikkim was an independent country prior to 1975. After the merger of Sikkim with Indian Union, the Central Govt. and the State Government, so far has not decided as to the ownership of the properties which actually belonged to the then Chougyal, i.e. Maharaja of Sikkim, Private Estate, Property of Sikkim Country. Even assuming, but not admitting, the property covered by Plot No. 291 is recorded in the name of Maharaja Sir Tashi Namgyal, it does not 'epso facto' mean that after the merger the suit property belonged to the State Government. As stated in the main written statement, the ownership of the schedule property never neither vested to Sir Maharaja Tashi Namgyal, nor the ownership of the father of the defendants Late Punya Pd. Pradhan, has been taken away. The record of right clearly shows that - Sikkim Sarkar, Maharaja Sir, S/o Tashi Namgyal, as a 'tenant'/'lessee' who needs to "pay the rent". 10. That at Para 15, after the word - "present case", the following sentences be inserted - "As submitted above, the father of the Defendants is still recorded owner of the schedule premises, being Plot No. 291, Khatian No. 432, as such any statement contrary to this fact is denied by the Defendants. It is denied that with the enforcement of the W.B.E.A. Act, 1953, the Plaintiff is the owner of the schedule premises. The Plaintiff has mis-interpreted the provisions of law under the West Bengal Estates Acquisition Act, 1953. The Plaintiff is trying to mis-lead the Hon'ble Court, and trying to wrongly interpret the provisions of the W.B.E.A. Act, 1953. It is submitted that after the death of Punya Pd. Pradhan, the Defendants herein have succeeded the entire movable and immovable property left by him, and accordingly the Defendants have made an application. When the Defendants found that the record of right as filed by the Plaintiff, was in Bengali vernacular, they engaged Lawyer to verify the same in concerned office. After verification in the concerned Office, it transpired that the ownership of suit property is still with our father Late Punya Prasad Pradhan. Accordingly the Defendants have approached the concerned authority for necessary correction. The copy of the Letter is enclosed herewith and marked with Letter-R-1. 11. That at Para 16, after the word - "defendant No. 1" following sentences may be inserted - "The Plaintiff expressed their willingness to purchase 23 Kottas of land out of Plot No. 291. Since the negotiation was going on, the defendant also did not care to pay the rental for the entire Plots of land, even after expiry of the lease period. It is worth mentioning here that the Plaintiff failed to pay the rental of the Lease premises since 20-6-2004 as stated above, and as such the defendants are entitled for their entire claims." The respondent/plaintiff, objected the said amendment, contending that as per the proviso to Rule 17 of Order VI of CPC, the petitioners/defendants No. 3 & 4 are not entitled to file an amendment after the trial has commenced. Learned District Judge, East and North at Gangtok, by his order dated 30-07-2009, agreeing with the contention made on behalf of the respondent/plaintiff, rejected the prayer for amending the written statement filed by the petitioners/defendants 3 & 4. Hence, the petitioners/defendants No. 3 and 4 filed the present writ petition seeking to quash the order dated 30-07-2009.
(3.) THE main issue that arises for the consideration in the above writ petition is: whether the writ petitioners/defendants No. 3 & 4 are entitled to amend the pleadings raised in the written statement invoking Order VI, Rule 17 of CPC, which reads as follows : "17. Amendment of pleadings.- THE Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties : Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." (Emphasis supplied) For the purpose of deciding the above issue, there is no need to go into merits of the pleadings raised in the proposed amendment, as the scope of this revision petition lies in a narrow campus viz. whether the writ petitioners/defendants No. 3 and 4 are entitled to amend the pleadings in the written statement after the trial has commenced, invoking Order VI Rule 17 read with Section 151 CPC.;

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