Judgment Heard Ms. Susan Linhares, learned Counsel appearing for the Petitioner and Shri Gaitonde, learned Counsel appearing for the Respondent. 2. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the Respondents waives service. 3. The above Petition challenges an Order passed by the learned Civil Judge, Junior Division at Panaji, in Regular Civil suit no. 79/2009/D, whereby an application for amendment of the written statement under Order 6 Rule 17 of the Civil Procedure Code, came to be rejected. 4. Ms. Linhares, learned Counsel appearing for the Petitioner, has assailed the impugned Order essentially on the ground that the Petitioner has pleaded in his original written statement that the Respondent was occupying the suit premises and/or his services were hired for running the lodge. Learned Counsel further pointed out that by the proposed amendment, the Petitioner desire to amplify the said contention by bringing some more material to corroborate and/or support the said contention which was already existing in the original written statement. Learned Counsel has taken me through the written statement at para 5 and pointed out that there was an averment to that effect therein and that the proposed amendment only discloses additional facts in support of the said contention. Learned Counsel further pointed out that the learned Judge has dismissed the application on the ground that due diligence was not established by the Petitioner to seek leave to amend the written statement under Order 6 Rule 17 of the Civil Procedure Code, when, according to the learned Counsel, the Petitioner has stated in their application that the original written statement was filed in a hurry and, as such, the said pleadings remained to be incorporated. Learned Counsel further pointed out that only at the time when the affidavit was being prepared on behalf of the Petitioner, they realised that such averments were found wanting in the original written statement. Learned Counsel further pointed out that it is well settled that the Courts should be liberal as far as granting an application for amendment is concerned. Learned Counsel in support of her submissions, has relied upon the Judgments of the Apex Court reported in (2012) 5 SCC 337 in the case of RameshkumarAgarwal vs. Rajmala Exports Private Limited & Ors. and (2011) 12 SCC 268 in the case of State of Madhya Pradesh vs. Union of India & anr. 5. Learned Counsel in support of her submissions, has relied upon the Judgments of the Apex Court reported in (2012) 5 SCC 337 in the case of RameshkumarAgarwal vs. Rajmala Exports Private Limited & Ors. and (2011) 12 SCC 268 in the case of State of Madhya Pradesh vs. Union of India & anr. 5. On the other hand, Shri Gaitonde, learned Counsel appearing for the Respondent, has supported the impugned Order. Learned Counsel further pointed out that after the amendment to the Civil Procedure Code in the year 2002, considering that the application for amendment is filed after the trial had begun, it was incumbent upon the Petitioner to disclose why such leave was not sought despite of due diligence on the part of the Petitioner. Learned Counsel has further taken me through the application and pointed out that there is nothing on record to suggest that there was any due diligence on the part of the Petitioner. Learned Counsel further submitted that considering that the Petitioner has failed to establish due diligence, the question of interference in the impugned Order would not arise. Learned Counsel further pointed out that the proposed amendment is inconsistent with the pleadings as, according to him, the contention sought to be advanced are not found in the original written statement filed by the Petitioner. Learned Counsel in support of his submissions has relied upon the Judgments of the Apex Court reported in 2009(1) SCC 238 in the case of Vidyabai& Ors. vs. Padmalatha & anr. and 2008(5) SCC 117 in the case of ChanderKanta Bansal vs. Rajinder Singh Anand. Learned Counsel as such submits that the Petition be rejected. 6. I have carefully considered the submissions of the learned Counsel appearing for the respective parties. On perusal of the written statement filed by the Petitioner at para 5 thereof, there is an allegation to the effect that the Respondent was allowed to occupy the suit premises as he was substituted. The amendment which is proposed to be incorporated in the written statement in fact specifies the instances and the nature of such occupation by the Respondent. Considering the proposed amendment and the original written statement filed by the Petitioner, I find that the factual matrix of the defence of the Petitioner in the written statement is not changed. The amendment which is proposed to be incorporated in the written statement in fact specifies the instances and the nature of such occupation by the Respondent. Considering the proposed amendment and the original written statement filed by the Petitioner, I find that the factual matrix of the defence of the Petitioner in the written statement is not changed. Hence, the contention of the learned Counsel appearing for the Respondent that the proposed amendment would be inconsistent with the original pleadings, cannot be accepted. 7. The next contention of the learned Counsel appearing for the Respondent is that there was no due diligence on the part of the Petitioner in pursuing their remedy to seek such relief before the trial started. No doubt, after the amendment of the Civil Procedure Code, in the year 2002, the discretion of the Court granting an amendment is curtailed, nevertheless, it is well settled that all amendments which are necessary to decide the dispute are to be allowed. In this connection, a recent Judgment of the Apex Court 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. 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.” 8. In the Judgment of the Apex Court in the case of State of Madhya Pradesh vs. Union of India & anr. (supra), it is observed at para 8 and 10 thus: “8) The purpose and object of Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hypertechnical approach. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations. 10. This Court, while considering Order 6 Rule 17 of the Code, in several judgments has laid down the principles to be applicable in the case of amendment of plaint which are as follows: (i) SurenderKumar Sharma v. MakhanSingh, at para 5: (SCC p. 627) “5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment.” (ii) North Eastern Railway Admn. v. BhagwanDas, at para 16: (SCC p. 517) “16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. v. BhagwanDas, at para 16: (SCC p. 517) “16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In PirgondaHongonda Patil v. KalgondaShidgonda Patilwhich still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side; and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.” (iii) UshaDevi v. RijwanAhamd, at para 13: (SCC p. 722) “13. Mr Bharuka, on the other hand, invited our attention to another decision of this Court in BaldevSingh v. ManoharSingh5. In para 17 of the decision, it was held and observed as follows: (SCC pp. 504-05) ‘17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings.’” (iv) Rajesh Kumar Aggarwal v. K.K. Modi6, at paras 15 & 16: (SCC pp. 392-93) “15. The object of the rule is that the 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. 16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.” (v) RevajeetuBuilders and Developers v. Narayanaswamy and Sons7, at para 63: (SCC p. 102) “63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” The above principles make it clear that courts have ample power to allow the application for amendment of the plaint. However, they must be satisfied that the same is required in the interest of justice and for the purpose of determination of real question in controversy between the parties.” 9. Considering the ratio laid down by the Apex Court in the above Judgments and in view of the fact that the Petitioner has contended that the original written statement was filed in haste and the Respondent has not attributed any malafides to the Petitioner, I find that, in the interest of justice, the application for leave to amend ought to have been granted. The learned Judge was not justified to pass the impugned Order and refuse the application for leave to amend. Considering that the stand is not altered by the proposed amendment nor the proposed amendment can be considered to be inconsistent with the original pleadings, I find that the learned Judge has committed an error by refusing leave to amend. The Judgment relied upon by the learned Counsel appearing for the Respondents, is not applicable to the facts of the present case. Apart from that, there are some reasons as to why such amendment was not filed at the earlier point of time. Nevertheless, considering that such amendment would be necessary to decide the dispute, I find that the learned Judge has erroneously exercised discretion in refusing leave to amend the written statement. 10. No doubt, any prejudice to the Petitioner in allowing such application would have to be compensated by the Petitioner. In such circumstances, I find it appropriate that the Petitioner should pay costs of Rs.5,000/-to the Respondent as condition precedent besides the Respondent would be entitled to lead rebuttal evidence in answer to any evidence adduced by the Petitioner in support of the allegations made in the proposed amendment. 11. In view of the above, I pass the following: (i) Rule is made absolute in terms of prayer (a) subject to the Petitioner paying costs of Rs.5,000/-to the Respondent as condition precedent and liberty as stated above. (ii) Petition stands disposed of accordingly.