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2004 DIGILAW 16 (SIK)

KARMA DENKA BHUTIA v. SARKI LAMU

2004-05-28

R.K.PATRA

body2004
R. K. PATRA, J. ( 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 theirand 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:"16 (A) That the petition praying for an order of status quo hied by the plaintiff to restrain the defendants from further construction was rejected and taking advantage or order dated 12-7-1999 the defendant not only demolished the suit premises in connivance/collusion with Lakpa Sherpa (Sardar) but also proceed further and constructed a R. C. C. structure thereof most illegally being fully aware of the present suit wherein half portion of the wooden structure is the subject matter of the suit. " (B) In the prayer portion of the plaint, the following new prayer be inserted, as a prayer'h: "h. To declare the plaintiffs are the owners of half portion of the newly constructed building and entitled to possession to that extent. " ( 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. " ( 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. ( 4 ) I have heard Shri S. P. Wangdi learned senior counsel for the appellants and Shri S. R. Sarkar, learned senior counsel for the respondents. It cannot be disputed as a proposition of law that amendment can be allowed at the appellate stage in appropriate cases. Prayer for amendment of plaint is liberally considered having regard to the fact that thereby multiplicity of proceedings can be avoided. Amendment however, should not be allowed if it is not necessary for determining the real controversy between the parties. The Court has also to see that a claim or relief which is barred by limitation should not be allowed to defeated a legal right accrued to the defendants except in exceptional cases. ( 5 ) THE real controversy between the parties centres around as to the source of title over the suit property. Therefore, the alleged construction of R. C. C. structure over the demolished wooden house is not material for the purpose of resolving the "real questions in controversy" between the contesting parties. The allegation of the plaintiffs- appellants is that the defendants/respondents illegally constructed a r. c. c. building after demolishing the wooden house which existed on the suit premises during the pendency of the suit. As I find from the lower Court records, respondent No. 1 who was examined as DW 1 deposed that she had completed the ground floor of the construction and "now in the process of starting first floor. At present the R. C. C. construction is under my possession". If that be, so, the alteration or change made to the suit property during the pendency of the suit is hit by the principle of Us pendens. Section 52 of the Transfer of Property Act, 1882 prohibits transfer or otherwise dealing with suit property during the pendency of the suit so as to affect the rights of any party. Therefore, such construction falls within the mischief of that section and would abide by the final outcome of the litigation. Section 52 of the Transfer of Property Act, 1882 prohibits transfer or otherwise dealing with suit property during the pendency of the suit so as to affect the rights of any party. Therefore, such construction falls within the mischief of that section and would abide by the final outcome of the litigation. The Supreme Court in Nagubai Ammal v. B. Sharma Rao, AIR 1956 SC 593 (Para 12} has held that the plea of Us pendens is permissible to be raised even though the point is not taken in the pleadings or raised as an issue. This being the position, in my considered opinion the prayer for amendment of the plaint is not necessary as the "real question of controversy" between the parties is with regard to the title over the suit property. For the foregoing reasons, the application for amendment is rejected. There would be no order as to costs. ( 6 ) LET the second appeal be set down for hearing in the last week of July, 2004. Order accordingly. --- *** --- .