IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 357 OF 2011
Piedade Fernandes
Versus
Coram :- F. M. REIS, J
Date : 7th October, 2011.
Citation;2012 (7)ALL M R182
2. Rule. Heard forthwith with the consent of the learned Counsel.
3. Shri Usgaonkar, learned Counsel appearing for the Respondent
waives service.
4.
The above Petition challenges the Order dated 15.02.2011 passed by
the learned Addl. District Judge, Fast Track Court-I, Margao, whereby the
application for amendment filed by the Petitioner under Order VI Rule 17 of the
C.P.C., to amend the written statement, came to be rejected.
5.
Shri Coutinho, learned Counsel appearing for the Petitioner, has
assailed the impugned Order and pointed out that the learned Judge has
essentially refused the application for amendment on the ground that the Petitioner
was very well aware about the pleadings sought to be incorporated at the time of
the filing of the written statement. The learned Counsel pointed out that all the facts
which are sought to be incorporated came to the knowledge of the Petitioner during
the pendency of the Appeal and for which reason, an application to produce
additional documents which came to his knowledge was filed before the Appellate
Court. The learned Counsel further pointed out that the learned Judge has acted in
irregularity whilst passing the impugned Order inasmuch as the learned Judge has
failed to erroneously refuse to exercise jurisdiction by refusing leave to the
Petitioners.
The learned Counsel further pointed out that the facts which are
sought to be incorporated by the proposed amendment are relevant for the purpose
deciding the dispute between the parties.
6.
On the other hand, Shri S. Usgaonkar, learned Counsel appearing for
the Respondent, points out that though it is not seriously disputed that the facts
came to the knowledge of the Petitioner during the pendency of the Appeal
however, there was no reason to incorporate the proposed pleadings in the written
statement. The learned Counsel further pointed out that as the Petitioner has not
shown due diligence in taking necessary steps for the purpose of finding out such
material earlier there is no question of allowing leave to the Petitioners. As such, it
is submitted that there is no case made out for granting any relief to amend the
written statement and, as such, the Petition deserves to be rejected.
7.
Having heard the learned Counsel and on perusal of the record, I find
that Shri Coutinho, learned Counsel appearing for the Petitioner is justified to
contend that the facts which are proposed to be incorporated came to the
knowledge of the Petitioner only at the time when the Appeal was pending decision
before the Appellate Court. These averments in the application have not been
disputed by the Respondent. There is no dispute that the facts which are sought to
be incorporated by the proposed amendment are connected with the dispute raised
by the parties in the suit and, as such, are relevant for deciding the matter. No
prejudice will be caused to the Respondent in case the proposed amendment is
allowed as they will be entitled to lead evidence in rebuttal in accordance with law.
The learned Judge was not justified in refusing the application for amendment on
the erroneous ground that the facts sought to be incorporated were known earlier
and ought to have been stated in the original written statement.
8.
The Apex Court in the Judgment reported in 2007(5) S.C.C. 602 in the
case of Usha Balashaheb Swami vs. Kiran Appaso Swami, has held at paras 17,
18 and 21, thus :
“17.
From a bare perusal of Order 6 Rule 17 of the Code of
Civil Procedure, it is clear that the court is conferred with
power, at any stage of the proceedings, to allow alteration
and amendments of the pleadings if it is of the view that such
amendments may be necessary for determining the real
question in controversy between the parties. The proviso to
Order 6 Rule 17 of the Code, however, provides that no
application for amendment shall be allowed after the trial has
commenced unless the court comes to a conclusion that in
spite of due diligence, the party could not have raised the
matter before the commencement of trial. However, proviso
to Order 6 Rule 17 of the Code would not be applicable in the
present case, as the trial of the suit has not yet commenced.”
18.
It is now well settled by various decisions of this Court
as well as those by the High Courts that the courts should be
liberal in granting the prayer for amendment of pleadings
unless serious injustice or irreparable loss is caused to the
other side or on the ground that the prayer for amendment
was not a bona fide one. In this connection, the observation
of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung
may be taken note of. The Privy Council observed: (IA pp.
216-17)
“All rules of court are nothing but provisions
intended to secure the proper administration of
justice, and it is therefore essential that they
should be made to serve and be subordinate to
that purpose, so that full powers of amendment
must be enjoyed and should always be liberally
exercised, but nonetheless no power has yet
been given to enable one distinct cause of action
to be substituted for another, nor to change, by
means of amendment, the subject-matter of the
suit.”
19. ...
20. ...
21. As we have already noted herein earlier that in allowing
the amendment of the written statement a liberal approach is
a general view when admittedly in the event of allowing the
amendment the other party can be compensated in money.
Technicality of law should not be permitted to hamper the
courts in the administration of justice between the parties. In
L.J. Leach & Co. Ltd. v. Jardine Skinner & Co. this Court
observed
“that the courts are more generous in allowing
amendment of the written statement as the
question of prejudice is less likely to operate in
that event”.
In that case this Court also held
“that the defendant has right to take alternative
plea in defence which, however, is subject to
an exception that by the proposed amendment
the other side should not be subjected to
serious injustice”.
9.
The Apex Court in another Judgment reported in AIR 1979 S.C. 551,
in the case of Ishwardas v. State of M.P. has held at para 4 thus :
“4.
We are unable to see any substance in any of the
submissions. The learned counsel appeared to argue on
the assumption that a new plea could not be permitted at
the appellate stage unless all the material necessary to
decide the plea was already before the court. There is no
basis for this assumption. There is no impediment or bar
against an appellate Court permitting amendment of
pleadings so as to enable a party to raise a new plea. All
that is necessary is that the appellate Court should observe
the well known principles subject to which amendments of
pleadings are usually granted. Naturally one of the
circumstances which will be taken into consideration before
an amendment is granted is the delay in making the
application seeking such amendment and, if made at the
appellate stage, the reason why it was not sought in the
trial court. If the necessary material on which the plea
arising from the amendment may be decided is already
there, the amendment may be more readily granted than
otherwise. But, there is no prohibition against an appellate
Court permitting an amendment at the appellate stage
merely because the necessary material is not already
before the Court.”
10.
Keeping the said principles in mind and taking note of the nature of
the controversy in the proceedings, I find that the impugned Order deserves to be
quashed and set aside and the Petitioners be permitted to amend their written
statement in the manner as prayed for in the application dated 20.09.2010.
11.
In view of the above, the impugned Order dated 15.02.2011 is
quashed and set aside and the application for leave to amend the written statement
by application dated 20.09.2010, is allowed.
12. Rule in above terms.
13. Petition stands disposed of accordingly with no order as to costs.
F .M. REIS, J.
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