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Ordinance XLI Rule 25 CPC


The High Court of Sikkim recently dismissed a motion filed under Section 227 of the Constitution seeking leave to amend the complaint and file a written statement to the counterclaim filed by the respondents, pending the proceeding in civil court under Ordinance XLI, Rule 25 CPC.

The provision provides that an appellate court may formulate certain additional questions for consideration and refer them to the trial court whose judgment is being appealed.

The bench of Judge Bhaskar Raj Pradhan observed that bBoth applications were filed after the conclusion of the trial following the conclusion of the pleadings, the formulation of the questions, the examination and cross-examination of the respective witnesses and the judgment rendered. Said judgment must still be re-examined within the framework of the respondent’s statutory appeal, whereas the applicant had not lodged any appeal.

So he observed,

What was not done at an appropriate stage by the petitioner must be done now, when the learned district judge had limited jurisdiction to determine only the additional issues formulated by this court. It is not allowed.

The additional issues were raised by the Court of Appeal and amending the complaint at this stage would not be necessary to resolve the controversy, she said.

The three additional issues raised by this court were to be considered by the learned district judge on the respondents’ pleadings in their written statement as well as in their counterclaim, although no written statement was filed by the petitioner at the request counterclaim. The burden of proving the three additional questions was then placed on the respondents. Therefore, the necessary pleadings are available from the learned district judge to determine the additional issues. The attempt to file a written statement under Ordinance VIII Rule 6 A (3) CCP would seriously prejudice the rights of the defendants. This would defeat the very purpose for which the supplementary questions were formulated by this court. Moreover, in the restricted jurisdiction for which the case was returned to the learned district judge, it was impermissible to grant such claims which were thus rightly dismissed.

Thus, the Court declined to exercise its supervisory jurisdiction under Section 227 of the Constitution, stating that the Constitution is not intended to interfere in the administration of justice by the trial court at each step and can only be used to correct gross errors or perversities in the orders.

In the present case, the High Court found that the petitioner had failed to show how the contested order had caused him a serious injustice. In view of this, the request was dismissed.

Case Title: Shri Ashok Tshering Bhutia v Divisional Forest Officer (T) and others.

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