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2011 DIGILAW 1258 (BOM)

Piedade Fernandes v. Charlene Leitao

2011-10-07

F.M.REIS

body2011
Judgment : JUDGMENT: 1. Heard Shri C. A. Coutinho, learned Counsel appearing for the Petitioner and Shri Sudin Usgaonkar, learned Counsel appearing for the Respondent. 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. 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 UshaBalashaheb 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. 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. MaungMo Hnaungmay 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. JardineSkinner & 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 Ishwardasv. State of M.P.has held at para 4 thus: “4. We are unable to see any substance in any of the submissions. 9. The Apex Court in another Judgment reported in AIR 1979 S.C. 551 , in the case of Ishwardasv. 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.