It is now well settled that trial commences only after
affidavit in evidence is filed in the suit.
Considering that no such
affidavit was filed in the suit by the petitioners/plaintiffs the learned
Judge was not justified to come to the conclusion that the petitioners had
to establish due diligence within the proviso to Order 6 Rule 17 of the
Civil Procedure Code. As such, the amendment application filed by the
petitioners is to be considered as a pretrial application for amendment
and, as such, the question of showing any due diligence would not arise.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.743 OF 2012
1. Teodolinda Dias Mandoly
Versus
1 Laurie Hermegeild Pereira,
CORAM : F.M. REIS, J.
DATE : 15th MARCH, 2013
Heard Shri A.D. Bhobe, learned Counsel appearing for the
petitioners. None for the respondents though served.
2.
Rule heard forthwith. The notice issued to the respondents was for
disposal of the above petition at the stage of admission.
3.
The above petition challenges an order passed by the learned Civil
Judge Junior Division at Margao dated 22/08/2012 whereby an
application for amendment filed by the petitioners came to be rejected.
4.
Briefly, the facts as submitted by Shri A.D. Bhobe, learned Counsel
appearing for the petitioners are that the petitioners filed the suit for
declaration and permanent injunction with regard to the structure located
in the property of the petitioners.
5.
The respondent no.1 in his written statement disputed the claim of
the petitioners and inter alia claimed that he is the mundkar of the
disputed premises.
It is further contended that before the affidavit
evidence was filed in the Court the petitioners filed an application for
amendment to inter alia disclose the flow of their right to the disputed
4
premises in the suit property. It is further the contention of Shri A.D.
Bhobe, learned Counsel that amendment is only clarificatory and in no
way changes the nature of the suit. The learned Counsel has also taken
me through the impugned order and pointed out that the learned Judge
has erroneously dismissed the application on the ground that trial had
already started when according to him the trial had not yet begun and, as
such, the question of showing any due diligence as observed by the
learned Judge in the impugned order is not justified.
The learned
Counsel, as such, submits that the impugned order be quashed and set
aside.
6.
The respondents though served failed to remain present. In fact,
the matter was adjourned on some occasions to give an opportunity to the
respondents to appear in the above petition. But however, none appeared
for the respondents at the time of the hearing of the above petition.
7.
I have considered the submissions of the learned Counsel
appearing for the petitioners and I have also gone through the records.
On perusal of the petition filed by the petitioners at para 4 of page 9, there
is a specific averment that the issues were framed on 2/07/2008 and the
matter was thereafter fixed for petitioners' evidence and that the
5
petitioners have not filed affidavit in evidence as of date.
These
averments in the petition have not been disputed by the respondents as
they failed to remain present when the above Writ Petition was taken up
for hearing.
It is now well settled that trial commences only after
affidavit in evidence is filed in the suit.
Considering that no such
affidavit was filed in the suit by the petitioners/plaintiffs the learned
Judge was not justified to come to the conclusion that the petitioners had
to establish due diligence within the proviso to Order 6 Rule 17 of the
Civil Procedure Code. As such, the amendment application filed by the
petitioners is to be considered as a pretrial application for amendment
and, as such, the question of showing any due diligence would not arise.
8.
The Apex Court in the 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 amendment of
their pleadings at any stage of the
proceeding for the purpose of determining the
real question in controversy between
them.
The
Courts have to be liberal in accepting
the same, if the same is made prior
to the
commencement of the trial.
If such
application is made after the commencement
6
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 of 1999, however, it
has again been restored by Amendment Act
22 of 2002 but with an added proviso to
prevent application for amendment being allowed
after the trial has commenced, unless the
Court comes to the conclusion that in spite of
due diligence, the party could not have raised
the matter before the commencement of trial.
The above proviso, to some extent, curtails
absolute discretion to allow amendment at any
stage. At present, 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,
allow all amendments that may be necessary
for determining the
real
question
in
controversy between the parties provided it does
not cause injustice or prejudice to the other
side. This Court, in a series of decisions has
held that the power to allow the amendment is
wide and can be exercised at
any stage of
the proceeding in the interest of justice.
The main purpose of allowing the amendment is
to minimize the litigation and the plea that
the relief
sought by way of amendment
was barred by time is to be considered in the light
of the facts and circumstances of each
case.
The above principles have been
reiterated by this Court in J. Samuel and Others
vs. Gattu Mahesh and Others, (2012) 2 SCC
300
and
Rameshkumar
Agarwal
vs.
Rajmala Exports Pvt. Ltd. and Others, (2012) 5
SCC 337. Keeping the above principles in
7
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 the purpose of determining the
real
questions
in controversy between the
parties should be allowed if it does not change
the basic nature of the suit. 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.
9.
Considering the ratio laid down by the Apex Court in the said
judgment, the Court has to take a liberal view in allowing application for
amendment which are filed prior to the commencement of the trial which
are necessary to decide the matter in controversy. In the present case, the
proposed amendment is referred to the dispute and to the averments made
by the petitioners in the plaint and, as such, I find that the learned Judge
was not justified to pass the impugned order refusing leave to the
petitioners to amend the plaint.
10.
Considering that the application was filed by the petitioners after
considerable time since the filing of the suit I find that the respondent
no.1 who is the contesting the suit is liable to be compensated with costs.
Such costs are quantified at Rs.3000/- to be paid by the petitioners to
8
respondent no.1 as condition precedent.
11.
In view of the above, I pass the following order:
ORDER
(i)
The impugned order dated 22/08/2012
passed by the learned Civil Judge Junior Division
at Margao is quashed and set aside.
(ii) The application filed by the petitioners
dated 13/07/2012 for leave to amend the plaint is
allowed subject to payment of costs of Rs.3,000/-
as condition precedent to respondent no.1.
(iii) Needless to say the respondents/defendants
are entitled to file additional written statement
after being served with the copy of the amended
plaint.
(iv)
Rule is made absolute in the above terms.
(v) The
petition
accordingly.
stands
disposed
of
(vi) Amendment to be carried out within two
weeks.
F.M. REIS, J.
NH/-
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