The learned counsel further pointed out that it is
well settled by the Apex Court that the amendment which is
of a clarificatory in nature can always be permitted at any
stage of the proceedings.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 81 OF 2013
Shri Harishkumar Sachdeva,
Versus
1. Smt. Madhavi Jain,
Coram : F. M. REIS, J.
Date :-1st MARCH, 20131
Citation;(2013)5 ALL M R 91
ORAL JUDGMENT :-
Heard
Shri
A.
R.
Kantak,
learned
counsel
appearing for the petitioner, Shri P. P. Singh, learned counsel
appearing for the respondent nos. 1 and 2 and Shri Shane
Dias Sapeco, learned counsel appearing for the respondent
no.3.
2.
Rule.
Heard forthwith by the consent of the
learned counsel.
3.
The learned counsel appearing for the respective
respondents waive service.
4.
The above petition challenges an order passed by
the leaned Civil Judge Senior Division, Mapusa, dated
30.11.2012 whereby an application for amendment filed by
the petitioner to amend the plaint came to be rejected.
5.
Briefly, the facts of the case are that the petitioner
filed a suit against the respondents inter-alia seeking a
direction to execute a deed of rectification to the sale deed
:3:
executed in favour of the petitioner and other reliefs.
The
suit came to be decreed by an ex-parte decree dated
12.01.1996. Thereafter, the respondents filed an application
to set aside the ex-parte decree and ultimately, the decree
came to be set aside by the learned District Judge by
judgment dated 06.01.2012. Subsequently, the respondents
were permitted to file their written statement to the suit.
After such written statement was filed, the petitioner found it
necessary to amend the plaint to rectify the sale deed as
according to him there are some defects in the plaint which
are more clarificatory in nature.
impugned
order
application.
dated
The learned judge by the
30.11.2012
rejected
the
said
Being aggrieved thereof, the petitioner has
preferred the above petition.
6.
Shri A. R. Kantak, learned counsel appearing for
the petitioner has assailed the impugned order on the ground
that
the
learned
Judge
has
dismissed
the
application
essentially on two counts. One is that the power of attorney
was not produced and that the affidavit in support of the
application for amendment was not filed. The learned counsel
has taken me through the application for amendment and
pointed out that such affidavit was in fact filed by the duly
constituted attorney of the petitioner.
The learned counsel
further pointed out that in case there was any defence to the
application for the failure to produce such power of attorney,
it was always open to the learned Judge to call upon the
petitioner to produce such power of attorney. The learned
counsel thereafter has taken me through the application for
amendment
and
pointed
out
that
the
amendment
is
essentially of a clarificatory in nature as the cause of action is
not changed nor the amendment is inconsistent with the
original pleadings.
The learned counsel further pointed out
that it is the contention of the petitioner that in the sale deed
executed in favour of the petitioner a different plot from the
one
agreed to be sold was purported to be sold to the
petitioner. The learned counsel further pointed out that it is
well settled by the Apex Court that the amendment which is
of a clarificatory in nature can always be permitted at any
stage of the proceedings.
The learned counsel has relied
upon the judgment of the Apex Court reported in (2005) 13
SCC 89 in the case of Sajjan Kumar V/s Ram Kishan. The
learned counsel as such submits that the impugned order be
quashed and set aside.
7.
On the other hand, Shri P. P. Singh, learned
counsel appearing for the respondent nos. 1 and 2 has
pointed out that the application has been filed with much
delay of nearly 20 years and according to him, the learned
Judge was justified to exercise its discretion in rejecting the
application. The learned counsel further pointed out that the
proposed amendment was not at all necessary to decide the
matter in dispute as according to him the sale deed executed
by the respondents is in terms of the agreement between the
parties.
The learned counsel has taken me through the
proposed amendment and pointed out that the petitioner is
only interested to change the nature of the suit and
incorporate therein a different property which is not the
subject matter of the suit. The learned counsel thereafter has
taken me through the relief clause and pointed out that the
petitioner is changing the relief sought in the original plaint.
The learned counsel as such submits that there is no reason
for interference by this Court in the impugned order and
consequently the petition be rejected. The learned counsel in
support of his submissions has relied upon the judgment of
the Apex Court reported in (2007) 0 AIR(SCW)7308 in the
case of Shiv Gopal Sah alias Shiv Gopal Sahu V/s Sita
Ram Saraugi. The learned counsel has also relied upon the
judgment of the Apex Court reported in (2004)2 JT 613 in
the case of
T. N. Alloy Foundry Co. Ltd., V/s T. N.
Electricity Board & Ors.
8.
I have carefully considered the submissions of the
learned counsel and I have also gone through the records.
The learned Judge was not at all justified to reject the
application on the ground that no affidavit was filed in support
of the application.
On bare perusal of the application
an
affidavit in support of the said application was indeed filed by
the petitioner.
The next ground to reject the application was
on account of the fact that no power of attorney was
produced is also not justified.
In case of any dispute with
that regard, the learned Judge could have always call upon
the petitioner to produce such power of attorney.
9.
On perusal of the application for amendment as
well as the proposed amendment, I find that the application is
merely clarificatory in nature.
It is not in dispute that the
application was filed much before framing of issues.
The
record also reveals that the ex-parte decree was set aside
only after nearly
more than 16 years from the date of the
filing of the proceedings. In such circumstances, I find that
the learned Judge was not justified to reject the application
on the ground of laches.
10.
Apart from that, the Apex Court in the recent
judgment dated 27.09.2012 in Civil Appeal no. 7043 of
2012 in the case of Abdul Rehman & Anr. vs. Mohd.
Ruldu & Ors., after considering the amendment to Order 6
Rule 17 of the Civil Procedure Code, has observed at paras 7,
8 and 15, thus :
“7)
It is clear that parties to the suit are
permitted to bring forward
of
their
the
pleadings
proceeding
determining
controversy
Courts
have
at
for
the
any stage of
purpose of
the
real
between
to
amendment
question
them.
in
The
be liberal in accepting
the same, if the same is made prior to
the commencement If
such
application
of
the
is made
trial.
after
the
commencement of the trial, in that event,
the Court has to arrive at a conclusion
that in spite of due diligence, the party
could not have raised the matter before
the commencement of trial.
8)
The original provision was deleted by
Amendment Act 46
however, has again
it
of
been
1999,
restored
by Amendment Act 22
an added
proviso
of 2002 but with
to prevent application
for amendment being allowed
trial
has
Court
commenced,
comes
to
after
the
unless
the
the conclusion that in
spite of due diligence, the party could not
have
raised
the
commencement
matter
before
of trial.
The
the
above
proviso, to some extent, curtails absolute
discretion to
stage.
allow
amendment
At present,
at
any
if application is filed
after commencement of trial, it has to
be
shown that in spite of due diligence, it could
not have
been
sought
earlier. The object
of the rule is that Courts should try the
merits of the case that come before them
and
should,
consequently,
amendments that may
determining
the
be
real
allow
all
necessary for
question
in
controversy between the parties provided it
does not cause injustice
the
other side.
decisions
has
or
prejudice to
This Court, in a series of
held
that
the
power
allow the amendment is wide and
exercised
at
proceeding
The
in
any
the
main purpose
stage
be
of
interest
of
can
to
the
of justice.
allowing the
the
amendment is to minimize
litigation and the plea that
sought by way
the
relief
of amendment was
barred by time is to be considered in the
light
of
of
each
have
Samuel
the
facts
case.
and
The above
and
Others
Rameshkumar
337.
principles
been reiterated by this Court in J.
vs.
and Others, (2012) 2
Exports
circumstances
Gattu
SCC
Agarwal
Mahesh
300
vs.
and
Rajmala
Pvt. Ltd. and Others, (2012) 5 SCC
Keeping the above
principles
in
mind, let us consider whether the appellants
have made out a case for amendment.
(emphasis supplied)
15)
We reiterate that all amendments
which are necessary for
determining
the
real
the
purpose
questions
of
in
controversy between the parties should be
allowed if it does not
nature
of
the
change
suit.
the
basic
A change
in
the nature of relief claimed shall not be
considered as a change in the nature of
suit and the power of amendment should
be exercised in the larger interests of
doing full and complete justice between
the parties.”
11.
Considering the ratio laid down by the Apex Court
in the said judgment, it is now well settled that the Court
should be liberal in granting the application for amendment in
case
such
evidence.
application
is
filed
before
the
recording
of
Apart from that, it is not in dispute that the
proposed amendment is with regard to the disputed property
which is the subject matter of the original suit.
In the
proposed amendment, there is no relief clause which is
substituted or added by the petitioner. The judgments of the
Apex Court relied upon by Shri P. P. Singh, learned counsel
appearing for the respondent nos. 1 and 2 are not applicable
to the facts of the present case.
In the first judgment, the
Apex Court was considering an application for amendment to
incorporate a relief which was hopelessly time barred. In the
other case, the Apex Court was considering the amendment
for enhancing the claim of damages which was originally
claimed. In the background of such facts, the observations of
the Apex Court are not at all applicable in the present
petition.
12.
Considering the facts and circumstances of the
case and taking note of the ratio laid down by the Apex Court
in the said judgment, I find that the learned Judge has
erroneously exercised its discretion in refusing leave to
amend the plaint. No doubt, such leave can be granted only
on payment of costs. Such costs are quantified at Rs.5000/-
to be paid by the petitioner to the respondents.
13.
In view of the above, I pass the following :
O R DER
(i) The impugned order dated 30.11.2012 is
quashed and set aside.
(ii)
The petitioner is permitted to amend the
plaint as prayed for subject to payment of costs of
Rs.5000/-
to
the
respondents
as
condition
precedent.
(iii)
All contentions of the respondents on merits
in respect of the proposed amendment are left
open.
(iv) Rule is made absolute in above terms.
(v) The petition stands disposed of accordingly.
F. M. REIS, J
at*
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