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2012 DIGILAW 2240 (BOM)

Margarida F. Rodrigues v. Peter Camilo

2012-11-30

F.M.REIS

body2012
JUDGMENT F.M. Reis, J. - Heard Shri A.D. Bhobe, learned Counsel appearing for the petitioners and Shri S. Vales, learned Counsel appearing for the respondent Nos. 1 and 2. 2. Rule, Heard forthwith by the consent of the learned Counsel. 3. Shri S. Vales, learned Counsel waives service on behalf of the respondent Nos. 1 and 2. 4. The above petition challenges an order passed by the learned Civil Judge Junior Division at Mapusa dated 14.11.2011 whereby an application for amendment filed by the petitioners came to be rejected. The suit came to be filed by the petitioners for permanent injunction and consequential relief against the respondents being Regular Civil Suit No. 8/2009 on the ground that the petitioners are the owners in possession of the property bearing survey No. 56/3 of the village Penha de Franca admeasuring 700 square metres. It is further their case that there exists a residential house of the petitioners as also the workshop owned by the petitioners under name and style M/s Regency Auto Garage and that they are in possession and enjoyment of the suit property and further that the petitioner No. 2 is in exclusive possession of the said auto garage wherein the repairs and servicing of the motor vehicles is being done. It is further their case that during the survey operation the names of Francisco Gomes and Crisal Gomes who are the ancestors of the petitioners are included in the occupants column of the survey records. It is further their case that the respondent Nos. 3 to 9 are the owners of the adjoining plot surveyed under No.56/4 and that the two properties are separated by a permanent masonary wall and partly by a barbed wire fencing. It is further their case that the petitioners have fixed an iron gate towards the north-east corner of their plot to go to the main road and that the said plot bearing No. 56/4 is divided into two halves by a recently erected masonary wall and that in the northern half there is a structure facing towards the road wherein the respondent No. 4 runs a bar and restaurant and the southern half of the said plot is vacant where there exists a small store room. It is further their case that by the outer wall of the bar and restaurant of the respondent No.4 there exists a passage of 1.20 metres in width to go to the main road from the southern half of the plot No. 56/4. It is further their case that the masonary wall was constructed by the respondent No.1 somewhere in the year 2006 under the pretext that he has purchased the rear portion of the property surveyed under No. 56/4 from the respondent Nos. 5 to 9 and fixed the iron gate towards the north-west corner of the said southern half portion of the plot No. 56/4. It is further their case that the whole attempt on the part of the respondents is to encroach into the suit property belonging to the petitioners by attempting to create an entrance to the said rear portion of plot No. 56/4 through the suit property. Accordingly, the suit came to be filed for the said reliefs. The respondent Nos. 3 and 4 have filed their written statement denying the case put forward by the petitioners. The respondent Nos. 1 and 2 were marked ex-parte and thereafter filed their written statement as well as the counter claim claiming a declaration. Thereafter, in October, 2010 the petitioners filed an application seeking to amend the plaint and also making reference to certain documents. It is their case that the file pertaining to the said documents was traced by the petitioners in the month of July, 2010 and that the proposed amendment is necessary for deciding the matter in controversy. The respondent Nos.1, 2, 3 and 4 filed their reply opposing the said application. By the impugned order dated 14.11.2011 the learned Judge rejected the application for amendment filed by the petitioners. 5. Shri Bhobe, learned Counsel appearing for the petitioners has assailed the impugned order essentially on the ground that the proposed amendment is not inconsistent with the original pleadings. It is further their case that the said amendment is actually necessary for deciding the matter in controversy. The learned Counsel further pointed out that the said documents came to be filed before the trial had commenced. It is further their case that the said amendment is actually necessary for deciding the matter in controversy. The learned Counsel further pointed out that the said documents came to be filed before the trial had commenced. The learned Counsel further pointed out that the documents on which the petitioners seek a relief by introducing the averments in the plaint came to their knowledge only subsequently and as such the learned Judge was not justified to refuse leave to amend the plaint. 6. On the other hand, Shri Vales, learned Counsel appearing for the respondent Nos.1 and 2 has pointed out that the petitioners have been negligent in pursuing their right to introduce the claim in the proposed amendment. The learned Counsel further pointed out that the documents were misplaced and traced thereafter is totally an after thought and have been fabricated by the petitioners only to make out a case for seeking leave to amend the plaint. The learned Counsel further pointed out that the contention of the petitioners to the effect that the documents were traced subsequently have not been established by any material on record. The learned Counsel has taken me through the impugned order and pointed out that the learned Judge has rightly rejected the application for amendment of the plaint. 7. I have carefully considered the submissions of the learned Counsel appearing for the respective parties and I have also gone through the records. It is not in dispute that the application for amendment came to be filed prior to the commencement of the trial. In such circumstances, the only aspect to be considered would be as to whether the proposed amendment is necessary for proper adjudication of the matter in controversy. On going through the application for amendment there is a specific averment made therein to the effect that the garage, licence and permissions obtained from the different authorities were kept in the file which was misplaced. It is further averred that they traced down the said file somewhere in July, 2010. It is not in dispute that the existence of the said garage is the subject a matter of the pleadings between the parties and in such circumstances, the averments which are sought to be incorporated cannot be said to be not referable to the dispute between the parties. It is not in dispute that the existence of the said garage is the subject a matter of the pleadings between the parties and in such circumstances, the averments which are sought to be incorporated cannot be said to be not referable to the dispute between the parties. The averments sought to be pleaded are basically in connection with the said garage and I find that it cannot be said that the proposed amendment is inconsistent with the original pleadings or that such averments are not necessary for the purpose of deciding the dispute in the suit. The learned Judge was not justified to consider at this stage whether the facts which are sought to be incorporated were or could be within the knowledge of the parties before filing the suit. Considering that the documents relied upon by the petitioners are essentially public documents and taking" note of the fact that no malafide can be attributed to the petitioners for not introducing such allegations at the earlier stage. I find that the learned Judge has erroneously exercised its jurisdiction by dismissing the application for leave to amend the plaint filed by the petitioners. In the recent judgment of the Apex Court dated 27.09.2012 in Civil Appeal No. 7043 of 2012 in the case of Abdul Rehman & Anr. v. Mohd. Ruldu & Ors., it has been observed at para 7 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. Considering the ratio laid down by the Apex Court in the said judgment and as the amendment is necessary for deciding the matter in controversy. I find that the impugned order dated 14.11.2011 passed by the learned Judge deserves to be quashed and set aside. Considering the ratio laid down by the Apex Court in the said judgment and as the amendment is necessary for deciding the matter in controversy. I find that the impugned order dated 14.11.2011 passed by the learned Judge deserves to be quashed and set aside. The application for amendment filed by the petitioners at Exhibit D-75 dated 15.10.2010 is liable to be allowed subject to the petitioners paying costs of Rs.2000/- to the respondent Nos. 1 and 2 as condition precedent. 9. In view of the above, I pass the following : ORDER (i) Rule is made absolute in terms of prayer clause (a) subject to the petitioners paying costs of Rs.2000/- to the respondent Nos. 1 and 2 as condition precedent. (ii) The petition stands disposed of accordingly. Petition disposed of.