Considering the ratio laid down by the Apex Court in the said
Judgment and in the facts and circumstances of the present case and for the
reasons stated herein above, I find that there is no reason to refuse the Petitioner
to amend the plaint as the allegations sought to be incorporated are not
inconsistent with the suit filed by the Petitioner. No doubt, the contention of the
Respondents on merits with regard to the proposed amendment would have to be
decided by the learned Judge on the basis of the written statement which the
Respondent no. 5 and their descendants would otherwise be entitled to file. All
objections of the parties on merits of the proposed amendment including the point
of limitation raised by the Respondent no. 5 would have to be decided by the
learned Judge whilst deciding the suit on merits. All such contentions of the parties
including Respondent no. 5 on such count, are left open.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 866 OF 2012
Mr. Abhay Arondekar,
V e r s u s
Mrs. Helen Prisca Correia,
Coram :- F. M. REIS, J
Date : 21 s t June, 2013 .
Citation;2013(6) ALLMR 712
At the outset, Shri Rohit Bras De Sa, learned Counsel appearing for
the Petitioner, upon instructions, seeks leave to delete Respondent nos. 1 to 4 from
the cause title. Hence, Respondent nos. 1 to 4 deleted at the risk of the Petitioner.
2. Heard Shri Rohit Bras De Sa, learned Counsel appearing for the
Petitioner and Shri Mascarenhas, learned Counsel appearing for the original
Respondent no.5.
3. Rule. Heard forthwith with the consent of the learned appearing for
the respective parties. Learned Counsel appearing for the Respondent no.5
waives service.
4. The above Petition challenges an Order passed by the learned Civil
Judge, Senior Division, at Vasco da Gama dated 05.11.2012, whereby an
application for amendment plaint filed by the Petitioner came to be dismissed at
exhibit D-37.
5. Briefly, the facts of the case are that the Petitioner has filed a suit for
specific performance on the basis of an agreement for sale executed between the
Petitioner and the Respondent nos. 1 to 4 in respect of a property surveyed under
WP-.866-12
-3-
Chalta no. 57 of P.T. Sheet no. 125 of Vasco city.
6. The Respondent nos. 1 to 4/Defendant nos. 1 to 4 in the suit, filed
their written statements in the said suit. The Respondent no.5 herein filed an
application to be impleaded in the suit, inter alia, claiming that he had a prior
agreement executed with the Original Defendant nos. 1 to 4 and, according to him,
the suit filed by the Respondent no.5 against the original Defendant nos. 1 to 4
came to be disposed of by the learned District Judge, South Goa, at Margao. The
application to be impleaded, came to be allowed and, consequently, the
Respondent no. 5 was permitted to file the written statement. It appears that in the
said written statements, the facts with regard to the filing of the said suit as well as
that the suit came to be disposed of in favour of the Respondent no.5, were
disclosed therein. Thereafter, it appears that the Petitioner filed an application for
amendment, inter alia, raising difference contentions and pointed out that according
to them, the Decree obtained in Regular Civil Suit no. 100/2001/C was by fraud
and, as such, inter alia, sought for a declaration that the Decree obtained in the
year 2010 by Defendant no. 5 stands vitiated by fraud. Apart from that, the
Petitioner also sought to give some particulars disclosing the reasons why the said
Decree stands vitiated. Another contention also raised was that in part
performance of the original agreement in favour of the Petitioner, the Petitioners
were in possession of the suit property. No doubt, these aspects were strongly
disputed by the Respondent no.5 by filing their reply and opposing the application
for amendment and, inter alia, canvassed that the allegations sought to be
incorporated flow from dishonesty on the part of the Respondent no.5. The learned
Judge by the impugned Order, refused leave to the Petitioner to amend the plaint.
Whilst passing the impugned Order, the learned Judge essentially found that by
incorporating the said facts, the cause of action would change and further that the
nature or the suit would also be changed as, according to the learned Judge, in a
suit for specific performance, the question of seeking any declaration as sought to
be done by the Petitioners is not permissible. Being aggrieved by the Order
refusing the application for leave to amend the plaint, the Petitioners preferred the
present Writ Petition.
7. Shri Rohit Bras De Sa, learned Counsel appearing for the Petitioner in
Writ Petition no. 866 of 2012, has submitted that the suit filed by the Petitioner was
for specific performance of an agreement for sale and, according to him, though the
Petitioner was aware about the pendency of the Regular Civil Suit filed by the
Respondent no.5 and that such suit was dismissed by the learned Trial Judge,
nevertheless, according to him, the knowledge that the manner in the Appeal
preferred by the Respondent no.5 came to be disposed of by the appellate Court,
came only after the written statement was filed by the Respondent no.5. Learned
Counsel further submits that according to the Petitioner, the Decree obtained by the
Respondent no.5 is by fraud and in collusion between the Respondent no.5 and the
original Defendant nos. 1 and 4. Learned Counsel further submits that in part
performance of the original agreement for sale, the Petitioner was in possession of
the suit property. Learned Counsel further submits that the amendment sought to
be incorporated, is a pre-trial amendment and, as such, the question of refusing
leave to the Petitioner would not arise. Learned Counsel as such submits that the
learned Judge has erroneously found that the character and the nature of the suit is
proposed to be changed by the Petitioner when, according to him, said contentions
are totally misplaced as the pleadings sought to be incorporated flow from the
original pleadings and the facts disclosed by the Respondent no. 5 in their written
statement. Learned Counsel further submits that in the facts and circumstances of
the case and considering the allegations made by the Respondent no. 5 in their
written statements, the only option open to the Petitioner was to meet the
allegations by filing an application for amendment. Learned Counsel further
submits that in case the allegations sought to be incorporated are not permitted,
grave prejudice would occasion to the Petitioner as the Petitioner would have no
opportunity to meet the allegations made in the written statement. Learned
Counsel has taken me through the impugned Oder and pointed out that the learned
Judge has erroneously relied upon the Judgments which are not at all applicable to
the facts and circumstances of the case and, consequently, the impugned Order
deserves to be quashed and set aside and the Petitioner be permitted to amend the
plaint.
8. On the other hand, Shri Mascarenhas, learned Counsel appearing for
the Respondent no.5, has strongly opposed the above Petition. Learned Counsel
further pointed out that the suit itself is dishonest and, according to him, the
proposed amendment further corroborates the dishonesty on the part of the
Petitioner. Learned Counsel further submits that the fact about the filing of the suit
was to the knowledge of the Petitioner way back in the year 2003 and the
proposed amendment is filed only in the year 2012 which itself discloses that the
WP-.866-12
-6-
proposed relief sought by the Petitioner is hopelessly time barred. Learned Counsel
has taken me through the plaint and pointed out that the fact with regard to the
filing of the suit was very much to the knowledge of the Petitioner and, thereafter,
the learned Counsel has pointed out from the written statements filed by the
Defendant nos. 1 to 4 that the fact that the Appeal was disposed of was clearly
disclosed in the written statement. Learned Counsel further submits that the
Petitioner did not show any due diligence to immediately file an application for
amendment if they were so entitled and waited to file such application only
belatedly to make out a false case. Learned Counsel further submits that the suit
itself is hopelessly time barred as according to him though there was refusal in the
performance of the contract by the original Defendant no. 4 in the year 2007,
nevertheless, the suit came to be filed only in 2011 which is barred by law of
limitation. Learned Counsel further submits that considering that the Petitioner was
aware about the suit filed by the Respondent no.5 way back in the year 2003, the
allegations of fraud sought to be incorporated only in the year 2012 are also time
barred. Learned Counsel further submits that considering that the Respondent no.
5 has a Decree in his favour, the suit filed by the Petitioner is totally misplaced and
deserves to be rejected by exemplary costs.
9. I have considered the submissions of the learned Counsel appearing
for the respective parties. I have also gone through the records. From the
submissions advanced by the respective Counsel, I find that the submissions are
more on the merits of the suit and merits otherwise sought to be incorporated in the
amendment application. It is well settled that whilst granting leave to a party to
WP-.866-12
-7-
amend the pleadings, the merits and/or the correctness or otherwise of the
pleadings sought to be incorporated cannot be gone into. The only aspect to be
considered is as to whether the proposed amendment is necessary for the purpose
of deciding the suit and whether the allegations sought to be incorporated flow from
the original pleadings of the parties. In the present case, it is not in dispute that the
suit filed by the Petitioner is for specific performance of the suit property which was
also the suit property in Regular Civil Suit filed by the Respondent no. 5 wherein a
Decree has been obtained in his favour. The records also reveal that the
Respondent no.5 himself sought impleadment in the suit filed by he Petitioner. The
Respondent no.5, also filed their written statement disclosing all the facts about the
disposal of the suit filed by the Respondent no.5 against the original Defendant
nos. 1 to 4. On perusal of the proposed amendment, I find that the facts sought to
be incorporated are to dispute the validity or correctness of a Decree in favour of
Respondent no.5 which, according to the Petitioner, has been obtained by fraud
and collusion. No doubt, there is a counter allegation of the Respondent no.5 that
the whole suit filed by the Petitioner themselves is a collusive suit with the original
Defendant nos. 1 to 4. These counter allegations made by the parties is a matter
which would have to be considered on its own merits. At this stage, on perusal of
the pleadings sought to be incorporated in the plaint, I find that such pleadings flow
from the original plaint. Considering the relief in the suit, the Petitioner is justified to
take a stand in connection with the Decree obtained in Regular Civil Suit filed by
the Respondent no.5 as it would come in the way of the Petitioner to seek the relief
in the suit. Whether the Petitioner is entitled for such relief or not, is a matter to be
considered on its own merits during the course of the trial of the suit. The facts as
to whether the Petitioner is in possession of the suit property or not is also a matter
which has to be decided on its own merits during the course of the trial. The
amendment sought by the Petitioner is pre-trial amendment. In this connection, 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 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 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.”
10. Considering the ratio laid down by the Apex Court in the said
Judgment and in the facts and circumstances of the present case and for the
reasons stated herein above, I find that there is no reason to refuse the Petitioner
to amend the plaint as the allegations sought to be incorporated are not
inconsistent with the suit filed by the Petitioner. No doubt, the contention of the
Respondents on merits with regard to the proposed amendment would have to be
decided by the learned Judge on the basis of the written statement which the
Respondent no. 5 and their descendants would otherwise be entitled to file. All
objections of the parties on merits of the proposed amendment including the point
of limitation raised by the Respondent no. 5 would have to be decided by the
learned Judge whilst deciding the suit on merits. All such contentions of the parties
including Respondent no. 5 on such count, are left open.
11. Subject to the above, the Petitioner is entitled for leave to amend the
plaint. The learned Judge was not justified to pass the impugned Order by relying
upon the Judgment which, inter alia, contemplates that when the suit is for specific
performance, the question of declaration of title would not arise. These are not at
all the facts in the present case. The proposed amendment is essentially to meet
the allegations sought to be made by the Respondent no.5 in their written
statements. Considering the facts and circumstances of the case, I find that the
learned Judge was not justified to pass the impugned Order which deserves to be
quashed and set aside. No doubt, the Respondents are entitled for costs to be
paid by the Petitioner to the Respondent no.5. The costs are quantified at
Rs.10,000/- to be paid to the Respondent no.5 as condition precedent.
12. In view of the above, I pass the following :
O R D E R
(I) The impugned Order dated 05.11.2012, is quashed
and set aside. The application for amendment at
Exhibit D-37-D for leave to amend the plaint is
allowed subject to the Petitioner paying costs of
Rs,.10,000/- to the Respondent no.5 as condition
precedent before the learned Trial Judge.
(II) Liberty to the Respondents and the other Defendants
in the suit to file their written statements by raising all
contentions on merits in accordance with law.
(III) Rule is made absolute in above terms.
(IV) Petition stands disposed of.
F .M. REIS, J.
Judgment and in the facts and circumstances of the present case and for the
reasons stated herein above, I find that there is no reason to refuse the Petitioner
to amend the plaint as the allegations sought to be incorporated are not
inconsistent with the suit filed by the Petitioner. No doubt, the contention of the
Respondents on merits with regard to the proposed amendment would have to be
decided by the learned Judge on the basis of the written statement which the
Respondent no. 5 and their descendants would otherwise be entitled to file. All
objections of the parties on merits of the proposed amendment including the point
of limitation raised by the Respondent no. 5 would have to be decided by the
learned Judge whilst deciding the suit on merits. All such contentions of the parties
including Respondent no. 5 on such count, are left open.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 866 OF 2012
Mr. Abhay Arondekar,
V e r s u s
Mrs. Helen Prisca Correia,
Coram :- F. M. REIS, J
Date : 21 s t June, 2013 .
Citation;2013(6) ALLMR 712
At the outset, Shri Rohit Bras De Sa, learned Counsel appearing for
the Petitioner, upon instructions, seeks leave to delete Respondent nos. 1 to 4 from
the cause title. Hence, Respondent nos. 1 to 4 deleted at the risk of the Petitioner.
2. Heard Shri Rohit Bras De Sa, learned Counsel appearing for the
Petitioner and Shri Mascarenhas, learned Counsel appearing for the original
Respondent no.5.
3. Rule. Heard forthwith with the consent of the learned appearing for
the respective parties. Learned Counsel appearing for the Respondent no.5
waives service.
4. The above Petition challenges an Order passed by the learned Civil
Judge, Senior Division, at Vasco da Gama dated 05.11.2012, whereby an
application for amendment plaint filed by the Petitioner came to be dismissed at
exhibit D-37.
5. Briefly, the facts of the case are that the Petitioner has filed a suit for
specific performance on the basis of an agreement for sale executed between the
Petitioner and the Respondent nos. 1 to 4 in respect of a property surveyed under
WP-.866-12
-3-
Chalta no. 57 of P.T. Sheet no. 125 of Vasco city.
6. The Respondent nos. 1 to 4/Defendant nos. 1 to 4 in the suit, filed
their written statements in the said suit. The Respondent no.5 herein filed an
application to be impleaded in the suit, inter alia, claiming that he had a prior
agreement executed with the Original Defendant nos. 1 to 4 and, according to him,
the suit filed by the Respondent no.5 against the original Defendant nos. 1 to 4
came to be disposed of by the learned District Judge, South Goa, at Margao. The
application to be impleaded, came to be allowed and, consequently, the
Respondent no. 5 was permitted to file the written statement. It appears that in the
said written statements, the facts with regard to the filing of the said suit as well as
that the suit came to be disposed of in favour of the Respondent no.5, were
disclosed therein. Thereafter, it appears that the Petitioner filed an application for
amendment, inter alia, raising difference contentions and pointed out that according
to them, the Decree obtained in Regular Civil Suit no. 100/2001/C was by fraud
and, as such, inter alia, sought for a declaration that the Decree obtained in the
year 2010 by Defendant no. 5 stands vitiated by fraud. Apart from that, the
Petitioner also sought to give some particulars disclosing the reasons why the said
Decree stands vitiated. Another contention also raised was that in part
performance of the original agreement in favour of the Petitioner, the Petitioners
were in possession of the suit property. No doubt, these aspects were strongly
disputed by the Respondent no.5 by filing their reply and opposing the application
for amendment and, inter alia, canvassed that the allegations sought to be
incorporated flow from dishonesty on the part of the Respondent no.5. The learned
Judge by the impugned Order, refused leave to the Petitioner to amend the plaint.
Whilst passing the impugned Order, the learned Judge essentially found that by
incorporating the said facts, the cause of action would change and further that the
nature or the suit would also be changed as, according to the learned Judge, in a
suit for specific performance, the question of seeking any declaration as sought to
be done by the Petitioners is not permissible. Being aggrieved by the Order
refusing the application for leave to amend the plaint, the Petitioners preferred the
present Writ Petition.
7. Shri Rohit Bras De Sa, learned Counsel appearing for the Petitioner in
Writ Petition no. 866 of 2012, has submitted that the suit filed by the Petitioner was
for specific performance of an agreement for sale and, according to him, though the
Petitioner was aware about the pendency of the Regular Civil Suit filed by the
Respondent no.5 and that such suit was dismissed by the learned Trial Judge,
nevertheless, according to him, the knowledge that the manner in the Appeal
preferred by the Respondent no.5 came to be disposed of by the appellate Court,
came only after the written statement was filed by the Respondent no.5. Learned
Counsel further submits that according to the Petitioner, the Decree obtained by the
Respondent no.5 is by fraud and in collusion between the Respondent no.5 and the
original Defendant nos. 1 and 4. Learned Counsel further submits that in part
performance of the original agreement for sale, the Petitioner was in possession of
the suit property. Learned Counsel further submits that the amendment sought to
be incorporated, is a pre-trial amendment and, as such, the question of refusing
leave to the Petitioner would not arise. Learned Counsel as such submits that the
learned Judge has erroneously found that the character and the nature of the suit is
proposed to be changed by the Petitioner when, according to him, said contentions
are totally misplaced as the pleadings sought to be incorporated flow from the
original pleadings and the facts disclosed by the Respondent no. 5 in their written
statement. Learned Counsel further submits that in the facts and circumstances of
the case and considering the allegations made by the Respondent no. 5 in their
written statements, the only option open to the Petitioner was to meet the
allegations by filing an application for amendment. Learned Counsel further
submits that in case the allegations sought to be incorporated are not permitted,
grave prejudice would occasion to the Petitioner as the Petitioner would have no
opportunity to meet the allegations made in the written statement. Learned
Counsel has taken me through the impugned Oder and pointed out that the learned
Judge has erroneously relied upon the Judgments which are not at all applicable to
the facts and circumstances of the case and, consequently, the impugned Order
deserves to be quashed and set aside and the Petitioner be permitted to amend the
plaint.
8. On the other hand, Shri Mascarenhas, learned Counsel appearing for
the Respondent no.5, has strongly opposed the above Petition. Learned Counsel
further pointed out that the suit itself is dishonest and, according to him, the
proposed amendment further corroborates the dishonesty on the part of the
Petitioner. Learned Counsel further submits that the fact about the filing of the suit
was to the knowledge of the Petitioner way back in the year 2003 and the
proposed amendment is filed only in the year 2012 which itself discloses that the
WP-.866-12
-6-
proposed relief sought by the Petitioner is hopelessly time barred. Learned Counsel
has taken me through the plaint and pointed out that the fact with regard to the
filing of the suit was very much to the knowledge of the Petitioner and, thereafter,
the learned Counsel has pointed out from the written statements filed by the
Defendant nos. 1 to 4 that the fact that the Appeal was disposed of was clearly
disclosed in the written statement. Learned Counsel further submits that the
Petitioner did not show any due diligence to immediately file an application for
amendment if they were so entitled and waited to file such application only
belatedly to make out a false case. Learned Counsel further submits that the suit
itself is hopelessly time barred as according to him though there was refusal in the
performance of the contract by the original Defendant no. 4 in the year 2007,
nevertheless, the suit came to be filed only in 2011 which is barred by law of
limitation. Learned Counsel further submits that considering that the Petitioner was
aware about the suit filed by the Respondent no.5 way back in the year 2003, the
allegations of fraud sought to be incorporated only in the year 2012 are also time
barred. Learned Counsel further submits that considering that the Respondent no.
5 has a Decree in his favour, the suit filed by the Petitioner is totally misplaced and
deserves to be rejected by exemplary costs.
9. I have considered the submissions of the learned Counsel appearing
for the respective parties. I have also gone through the records. From the
submissions advanced by the respective Counsel, I find that the submissions are
more on the merits of the suit and merits otherwise sought to be incorporated in the
amendment application. It is well settled that whilst granting leave to a party to
WP-.866-12
-7-
amend the pleadings, the merits and/or the correctness or otherwise of the
pleadings sought to be incorporated cannot be gone into. The only aspect to be
considered is as to whether the proposed amendment is necessary for the purpose
of deciding the suit and whether the allegations sought to be incorporated flow from
the original pleadings of the parties. In the present case, it is not in dispute that the
suit filed by the Petitioner is for specific performance of the suit property which was
also the suit property in Regular Civil Suit filed by the Respondent no. 5 wherein a
Decree has been obtained in his favour. The records also reveal that the
Respondent no.5 himself sought impleadment in the suit filed by he Petitioner. The
Respondent no.5, also filed their written statement disclosing all the facts about the
disposal of the suit filed by the Respondent no.5 against the original Defendant
nos. 1 to 4. On perusal of the proposed amendment, I find that the facts sought to
be incorporated are to dispute the validity or correctness of a Decree in favour of
Respondent no.5 which, according to the Petitioner, has been obtained by fraud
and collusion. No doubt, there is a counter allegation of the Respondent no.5 that
the whole suit filed by the Petitioner themselves is a collusive suit with the original
Defendant nos. 1 to 4. These counter allegations made by the parties is a matter
which would have to be considered on its own merits. At this stage, on perusal of
the pleadings sought to be incorporated in the plaint, I find that such pleadings flow
from the original plaint. Considering the relief in the suit, the Petitioner is justified to
take a stand in connection with the Decree obtained in Regular Civil Suit filed by
the Respondent no.5 as it would come in the way of the Petitioner to seek the relief
in the suit. Whether the Petitioner is entitled for such relief or not, is a matter to be
considered on its own merits during the course of the trial of the suit. The facts as
to whether the Petitioner is in possession of the suit property or not is also a matter
which has to be decided on its own merits during the course of the trial. The
amendment sought by the Petitioner is pre-trial amendment. In this connection, 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 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 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.”
10. Considering the ratio laid down by the Apex Court in the said
Judgment and in the facts and circumstances of the present case and for the
reasons stated herein above, I find that there is no reason to refuse the Petitioner
to amend the plaint as the allegations sought to be incorporated are not
inconsistent with the suit filed by the Petitioner. No doubt, the contention of the
Respondents on merits with regard to the proposed amendment would have to be
decided by the learned Judge on the basis of the written statement which the
Respondent no. 5 and their descendants would otherwise be entitled to file. All
objections of the parties on merits of the proposed amendment including the point
of limitation raised by the Respondent no. 5 would have to be decided by the
learned Judge whilst deciding the suit on merits. All such contentions of the parties
including Respondent no. 5 on such count, are left open.
11. Subject to the above, the Petitioner is entitled for leave to amend the
plaint. The learned Judge was not justified to pass the impugned Order by relying
upon the Judgment which, inter alia, contemplates that when the suit is for specific
performance, the question of declaration of title would not arise. These are not at
all the facts in the present case. The proposed amendment is essentially to meet
the allegations sought to be made by the Respondent no.5 in their written
statements. Considering the facts and circumstances of the case, I find that the
learned Judge was not justified to pass the impugned Order which deserves to be
quashed and set aside. No doubt, the Respondents are entitled for costs to be
paid by the Petitioner to the Respondent no.5. The costs are quantified at
Rs.10,000/- to be paid to the Respondent no.5 as condition precedent.
12. In view of the above, I pass the following :
O R D E R
(I) The impugned Order dated 05.11.2012, is quashed
and set aside. The application for amendment at
Exhibit D-37-D for leave to amend the plaint is
allowed subject to the Petitioner paying costs of
Rs,.10,000/- to the Respondent no.5 as condition
precedent before the learned Trial Judge.
(II) Liberty to the Respondents and the other Defendants
in the suit to file their written statements by raising all
contentions on merits in accordance with law.
(III) Rule is made absolute in above terms.
(IV) Petition stands disposed of.
F .M. REIS, J.
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