MALIKA RAI Vs. SIRI BAHADUR BHUJEL
HIGH COURT OF SIKKIM
Siri Bahadur Bhujel
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JITENDRA KUMAR MAHESHWARI,J. -
(1.) Invoking jurisdiction of Article 227 of the Constitution of India and assailing the order dated 01.08.2018 passed by the learned Civil Judge, East Sikkim at Gangtok in T.S. Case No. 03/2018 allowing the application filed by the plaintiff, plaintiff seeking amendment under Order VI Rule 17 read with Section 151 of the Civil Procedure Code, 1908, this petition has been preferred.
(2.) Learned Counsel for the defendant/ petitioner contends that by way of proposed amendment, allowed and permitted to be incorporated by the Learned Trial Court, the boundaries of the property which is in question has been substantially changed therefore, it would amounting to change of nature of the property and suit to which a decree is sought, in such a circumstance the order passed by the learned Civil Judge and in particular reasonings so assigned is not justifiable. Therefore, the order passed by the learned Trial Court may be set aside. Learned counsel placed reliance on a case of Smt. Krishna v. Smt. Laila Begum and others reported in 2012 SCC OnLine P and H 23869 of Punjab and Haryana High Court contending that in a similar circumstances the Court refused to entertain the application seeking amendment. In view of the forgoing it is asserted that, the order passed by the learned Civil Judge is in access to the jurisdiction not conferred on him as per the provisions of Order VI Rule 17 CPC, therefore, such an order may be set aside.
(3.) On the other hand, learned counsel representing the plaintiff/ respondent submits and has argued in support of the order passed by the learned Trial Court, inter alia, contending that the suit is at its initial stage and the trial has not yet commenced and the defendant/petitioner is having right to make consequential amendment in the written statement, therefore, looking to the stage of the case, which is at initial stage, the amendment in pleading if allowed would not prejudice the right of the defendant. Therefore, the order passed by learned Trial Court exercising the power under Order VI Rule 17 CPC is as per Rules. Therefore, interference by this Court in exercise of power under Article 227 of the Constitution of India is not warranted.;
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