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2013 DIGILAW 1130 (BOM)

Abhay Arondekar v. Helen Prisca Correia

2013-06-21

F.M.REIS

body2013
JUDGMENT 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 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. 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 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 Order 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 proposed relief sought by the Petitioner is hopelessly time barred. 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 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 amend the pleadings, the merits and/or the correctness or otherwise of the pleadings sought to be incorporated cannot be gone into. It is well settled that whilst granting leave to a party to 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 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 pretrial amendment. In this connection, the Apex Court in the Judgment dated 27.09.2012 in Civil Appeal no. 7043 of 2012 : 12012 ALL SCR 2922) 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. 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. 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 : ORDER (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. Ordered accordingly.