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2013 DIGILAW 142 (BOM)

Luiza Maria Baptista v. Francsico Xavier Baptista

2013-01-17

F.M.REIS

body2013
JUDGMENT F.M. Reis, J.- Heard Shri A.F. Diniz, learned counsel appearing for the petitioner, Shri V. Menezes, learned counsel appearing for respondent Nos. 1, 2 and 4 and Shri P. Arolkar, learned counsel appearing for respondent No.5. None for the respondent No. 3 though served. The notice was also issued for final disposal at the stage of admission. 2. Rule. Heard forthwith with the consent of the learned counsel. 3. The learned counsel appearing for the respective respondents waive service. 4. The above petition challenges an order passed by the learned Civil Judge Senior Division, Margao, dated 02.11.2012 whereby an application for amendment filed by the petitioner came to be rejected. 5. Shri Diniz, learned counsel appearing for the petitioner has assailed the impugned order on the ground that the amendment which is sought is to incorporate are facts which came to the knowledge of the petitioner after the filing of the suit and to include a prayer for compensation/damages in the alternative. The learned counsel further pointed out that the suit filed by the petitioner was originally for declaration to the effect that the Deed of Assignment of Illiquid Rights to the inheritance drawn on 03.01.1997 was null and void and for consequential relief to claim a right of pre-emption in respect of the transfer of the suit property. The learned counsel further pointed out that the petitioner had also sought for a permanent injunction with regard to the suit property and the petitioner learnt from the written statement filed by the respondent Nos. 1 and 2 that in fact the right of the deceased had already been allotted to the petitioner in the Decree passed in the partition suit and consequentially, the question of selling any illiquid right in the inheritance would not arise. The leaned counsel further pointed out that in view of the said document, the petitioner wanted to incorporate the said aspect and seek a relief in the alternative to claim an amount on the basis of the value of her share in the suit property. The learned counsel has taken me through the impugned order and pointed out that the learned Judge has erroneously dismissed the application for amendment. 6. On the other hand. Shri V. Menezes, learned counsel appearing for the respondent Nos. 1, 2 and 4 has supported the impugned order. The learned counsel has taken me through the impugned order and pointed out that the learned Judge has erroneously dismissed the application for amendment. 6. On the other hand. Shri V. Menezes, learned counsel appearing for the respondent Nos. 1, 2 and 4 has supported the impugned order. The learned counsel has pointed out that the petitioner by the proposed amendment is raising totally inconsistent and self destructive pleas and consequently the question of allowing such amendment would not arise. The learned counsel further pointed out that the amendment if allowed would change the nature of the suit and in fact further submitted that such amendment even displaced the defence of the respondents. The learned counsel has taken me through the plaint and pointed out that the original plaint filed by the petitioner was on the premise that the sum of Rs.10,00,000/- and a flat was agreed to be given to the petitioner from which a sum of Rs.7,00,000/- was already received by the petitioner. The learned counsel further pointed out that giving up the said contention, the petitioner desires to amend the plaint to incorporate facts which are self destructive to the said contention. The learned counsel further pointed out that the relief sought to be incorporated is hopelessly barred by limitation as according to him the sale deed in favour of the respondent No.4 was executed in the year 2006. The learned counsel as such submits that no interference is called for in the impugned order. 7. I have duly considered the submissions of the learned counsel and I have also gone through the records. It is not in dispute that the application filed by the petitioner was much before the framing of the issues. Hence, the only aspect is to be considered is whether such amendment is necessary for the purpose of deciding the matter in controversy. 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., the Apex Court has held 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. 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 spit 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 v. Gattu Mahesh and Others, (2012) 2 SCC 300 and Rameshkumar Agarwal v. 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. 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. Considering the ratio laid down by the Apex Court, I will now proceed to consider as to whether the learned Judge was justified to dismiss the application for amendment filed by the petitioner. The contention of Shri V. Menezes, learned counsel appearing for the respondent Nos.1, 2 and 4 that the claim of the petitioner would be barred by limitation cannot be accepted at this stage. The petitioner has not changed the date of the cause of action as incorporated in the original pleadings. On the basis of para 22 of the plaint, the petitioner has alleged that the cause to file the suit arose in the first week of November, 2010. Considering the said date of the cause of action, the question of holding at this stage that the claim of the petitioner is ex facie barred by limitation cannot be accepted. No doubt, considering the contention of Shri V. Menezes, the point of limitation is arguable which can always be considered by the learned Judge while deciding the suit on merits. Leaving the question of limitation open to be considered by the learned Judge during the course of the hearing of the suit on merits. I find that the contention of Shri Menezes on that count cannot be accepted. 9. The suit which was filed by the petitioner was essentially in respect of the property where the petitioner claims some right therein. That the petitioner had right to the property in dispute is otherwise not in dispute. But however, such right, if any, according to the respondents has been duly conveyed in favour of the respondent No. 4. Taking note of the fact that the allegations sought to be introduced by the petitioner in the proposed amendment are referable to the dispute in the suit. But however, such right, if any, according to the respondents has been duly conveyed in favour of the respondent No. 4. Taking note of the fact that the allegations sought to be introduced by the petitioner in the proposed amendment are referable to the dispute in the suit. I find that at this stage the learned Judge was not justified to go into the correctness of the averments proposed to be introduced. The question of the defence of the respondents being displaced cannot be accepted considering the contention of the petitioner that such averments were necessitated in view of the written statement of the respondents. Leaving the defence of the respondents open with regard to such contention. I find that the learned Judge was not justified to refuse leave to amend the plaint. Once it is found that the proposed amendment is referable to the dispute, it is not open to the learned Judge to dismiss the application for leave to amend specially taking into account the contention of the petitioner that they are incorporated in view of the written statement filed by the respondent Nos. 1 and 2. Keeping all the contentions of the respondents open. I find that the petitioner was entitled for leave to amend the plaint. No doubt, such application for amendment is to be granted subject to payment of costs to the contesting defendants. The contesting defendants are stated to be respondent Nos. 1 and 2 and 4. Hence, the application for amendment is to be allowed subject to payment of costs of Rs.2000/- to the respondent No. 1 and 2 and further sum of Rs.2000/- to the respondent No.4. 10. In view of the above. I pass the following: ORDER (i) The impugned order dated 02.11.2012 is quashed and set aside. (ii) The application, for amendment filed by the petitioner dated 27.06.2012 is allowed subject to the payment of the said sum of Rs.4000/- within four weeks from today. (iii) All contentions on merits with regard to the proposed amendment of both the parties are left open. (iv) Rule is made absolute in above terms. (v) The petition stands disposed of accordingly. Petition disposed of