Meenakshi Madan Rai, J
1. The Petitioner is aggrieved by the Order, dated 06-07-2023, passed by the Court of the Learned Principal District Judge, at Gangtok, Sikkim, in Title
Appeal No.03 of 2021, Umesh Agarwal vs. Mahesh Agarwal and Another by which the amendment sought by the Appellant (Respondent No.1
herein), at the appellate stage, was permitted by the said Court, being the First Appellate Court.
2. Learned Senior Counsel contended that the order caused severe prejudice to the Petitioner and to the cause of justice. The attention of this Court
was drawn to Paragraph 18 of the application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter, the “CPCâ€), filed by the
Respondent No.1, as the Appellant, before the Court of Learned District Judge, East Sikkim, at Gangtok. That, as per Paragraph 18 of the said
application the following amendments were proposed by the Respondent No.1;
“18. That the proposed amendments sought by the applicant/plaintiff is as follows:-
a. To amend the grounds (e) of the appeal by replacing with “For that through the instant appeal the appellant is challenging the finding of
the Ld. Trial Court in regard to issues No.1 to 7 (instead upto 9), 13 to 16. In the impugned judgment.â€
b. To amend the prayer (b) of the plaint which reads as “decree declaring that the plaintiff, besides his acquiring the rights and
authority of the Performa defendant following payment of its dues has the right to recover the debt incurred by him to the tune of Rs.20.5
lacs from and out of the properties owned by the joint family as described in the schedule below.â€
to “decree declaring that the plaintiff, besides his acquiring the rights and authority of the Performa defendant following payment of its
dues has the right over the properties in item no.4 and 8 in the Schedule which were released by payment of the duesâ€.
c. To amend the prayer no. (d) which reads as “decree declaring that the plaintiff is entitled to recover from the defendant ½ of the sum
of Rs.20.5 lacs and interest thereon at the rate of 18% per annum.†To “decree declaring that the plaintiff is the absolute owner of the
properties released by the Plaintiff after payment of dues i.e. item no.3, 4, 7 and 8 of the Schedule Property.â€
(i) That, this Court vide its Judgment, dated 14-12-2020, in RSA No.05 of 2019,M ahesh Agarwal and Others vs. Umesh Agarwal and Others, had
specified which of the disputed properties belonged to the Petitioner and to the Respondent No.1. That, Item Nos.4, 8, 11 and 12 of Schedule “Aâ€
to the Plaint of the Title Suit No.21 of 2013, were allotted to the share of the Petitioner herein and Item Nos.2, 3, 7 and 10 of Schedule “A†to the
Plaint of the Title Suit No.21 of 2013, fell in the share of the Respondent No.1 herein. That, this has been specifically detailed in Paragraph 31 of the
Judgment of this Court dated 14-12-2020, in RSA No.05 of 2019. That, in light of the said declarations in the said Judgment, the amendments sought
would be in contradiction thereof as once the ownership of the properties have been determined by this Court, the Respondent No.1 cannot lay claim
to the properties that fell in the share of the Petitioner.
3. Learned Senior Counsel for the Respondent No.1 concedes that the amendments sought and extracted hereinabove do not clearly lay down the
intent of the Respondent No.1, which in fact was not to claim the properties of the Petitioner herein but to make him repay his share of the Rs.20.50
lakhs (Rupees twenty lakhs and fifty thousand) only, that the Respondent No.1 had deposited with the Respondent No.2 herein (SIDICO), in order to
redeem the properties that were put forth as collateral when loan was taken from the Respondent No.2 by the Petitioner, the Respondent No.1 and
their late father for business purposes.
4. Learned Government Advocate for the Respondent No.2 had no submissions to make in this context.
5. Having heard Learned Counsel for the parties in extenso and given due consideration to the submissions, I have to opine that whatever be the
intent of the Respondent No.1, however from a reading of the proposed amendments of the Respondent No.1 as put forth in the application under
Order VI Rule 17 of the CPC, at Paragraph 18 s(upra) already referred to, the proposals are preposterous. This Court vide its Judgment in RSA
No.05 of 2019, dated 14-12-2020, has already determined the division of the properties which have been elucidated at length in the Judgment. The
Respondent No.1 cannot now lay claim innocuously to the properties viz. Item Nos.4 and 8 found to be that of the Petitioner, by way of the proposed
amendments. The Learned First Appellate Court in my considered view has failed to take into consideration this aspect of the matter.
6. The Petition is consequently considered and allowed and the Order of the Learned First Appellate Court dated 06-07-2023, in Title Appeal No.03 of
2021, is quashed and set aside.
7. Copy of this Judgment be forwarded to the Learned First Appellate Court for information.
