Judgment :- Heard Shri Rohit Bras De Sa, learned Counsel appearing for the Petitioner and Shri Zeller D' Souza, learned Counsel appearing for the Respondent nos. 5 to 10 and Shri Sagar Dhargalkar, learned Addl. Government Advocate for the Respondent nos. 1 to 4. 2. The above Petition seeks for the following relief: For a writ of Certiorari or any other writ, order or direction calling for the records and proceedings in Civil Suit no. 34/2009 on the file of the Adhoc District Judge I F, South Goa, at Margao, and after considering the legality, proprietary and correctness of the impugned Order dated 19.1.2011 and Order dated 20.6.2011, this Hon'ble Court may be pleased to quash and set aside the Impugned Order made on the application filed under Order VI Rule 17 and Order 47 Rule 1 of the Code of Civil Procedure, 1908. 3. Briefly, the facts of the case are that the Petitioners filed a suit on the basis that they are owners in possession of the property which they had purchased pursuant to a Sale Deed dated 21.10.1967 of the property surveyed under no. 50/31 and 39/1 of Majorda Village. 4. Before the trial had commenced, the Petitioners filed the above application for amendment to amend the plaint, inter alia, to contend that they are also owners of the suit property by adverse possession and/or prescription. The Respondents opposed the said application essentially on the ground that such amendment was malafide and further that the pleas sought to be taken are self destructive. Learned Judge by the impugned Order dismissed the application filed by the Petitioner for amendment of the plaint. 5. Shri Rohit Bras De Sa, learned Counsel appearing for the Petitioners, has assailed the impugned Order on the ground that it was the case of the Petitioner at Paras 3 and 4 of the plaint that even prior to the Sale Deed, the Petitioners were in possession of the property according to him adversely to the interest of the vendors. Learned Counsel further pointed out that the learned Judge has failed to consider that the claim of the Respondents is that they are owners of the suit property on the basis of another Sale Deed executed by the Respondent nos. 5 to 8. Learned Counsel further pointed out that the learned Judge has failed to consider that the claim of the Respondents is that they are owners of the suit property on the basis of another Sale Deed executed by the Respondent nos. 5 to 8. Learned Counsel further pointed out that the learned Judge has come to the conclusion that self destructive pleas cannot be allowed to be taken without going into the aspect that the claim of the Petitioners in, any event, was in the alternative. Learned Counsel further pointed out that he desires to introduce the word "in the alternative" in the relief sought by the proposed amendment. Learned Counsel has taken me through the impugned Order as well as through the plaint and pointed out that there is no bar to seek such amendment of plaint. Learned Counsel as such submits that the impugned Order deserves to be quashed and set aside. 6. On the other hand, Shri Zeller D' Souza, learned Counsel appearing for the Respondent nos. 5 to 10, has vehemently opposed the said amendment application. Learned Counsel further pointed out that such amendment is a dishonest attempt on the part of the Petitioners to seek the amendment on false and vexatious grounds. Learned Counsel further pointed out that the question of granting any relief in the absence of the vendors is totally misplaced. Learned Counsel has taken me through the plaint and pointed out that the original claim of the Petitioner is that they are owners of the property on the basis of the alleged Sale Deed and the question of claiming any adverse and prescriptive title is totally misconceived. Learned Counsel has further pointed out that considering the malafides and the dishonest attempts on the part of the Petitioners, the question of any interference by this Court does not arise. 7. I have care fully considered the submissions of the learned Counsel. I have also gone through the records. No doubt, the Petitioners should have sought the relief claimed by them on the basis that they have become owners by prescription ought to have been in the alternative. Considering the request of Shri Rohit Bras De Sa, learned Counsel appearing for the Petitioners, the prayer clause in the proposed amendment would have to be suitably amended accordingly. 8. This Court in the Judgment reported in 2001(3) Mh. Considering the request of Shri Rohit Bras De Sa, learned Counsel appearing for the Petitioners, the prayer clause in the proposed amendment would have to be suitably amended accordingly. 8. This Court in the Judgment reported in 2001(3) Mh. L.J. 151 in the case of MudraSalt & Chemical Industries vs. Collector, Thane & Ors. has observed at Paras 9, 10 and 11 thus: "9. Having heard the parties, at the outset, it is needless to mention that it is a settled law that amendment of the pleadings could be made at any stage of the proceedings. Instances are not wanting that pleadings are permitted to be amended even when second appeal is pending. In this case the suit is at the preliminary stage. The issues are yet to be framed. The amendment application was moved at early stage of the suit. Apart from this, the main relief claimed in the suit is of negative declaration based on title; whereas by virtue of the amendment the plaintiffs are trying to carve out an alternative case, that if they fail in seeking declaration on title, then, they are entitled to claim title based on adverse possession. In this circumstance, the question is : Can such amendment be allowed ? 10. Considering the nature of amendment, I am of the opinion that the plaintiff should be allowed to amend the plaint. The Supreme Court has ruled in the case of (Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon)7 A.I.R. 1969 S.C. 1267, that the amendment to the plaint should be allowed, if it does not cause injustice to the defendant. 11. The Supreme Court in the case of G. Nagamma and another v. Siromanamma and another (supra) ruled that it is settled law that the plaintiff is entitled to plead even inconsistent pleas. ”9. Considering the ratio laid down by this Court in the said Judgment, there is no bar to raise a plea of adverse possession in the alternative as such relief does not necessarily result in a self destructive plea. In such circumstances, I find that the learned Judge was not justified to refuse the application for leave to amend. The contention of Shri Zeller D' Souza, learned Counsel appearing for the Respondent nos. In such circumstances, I find that the learned Judge was not justified to refuse the application for leave to amend. The contention of Shri Zeller D' Souza, learned Counsel appearing for the Respondent nos. 5 to 10, that the relief cannot be granted in the absence of the vendors, is a matter which the Respondents can always raise in their additional written statement. All the contentions raised by the Respondents to the proposed amendment are essentially on merits of the claim put forward by the Petitioners and would have to be adjudicated in, any event, in the course of the trial of the suit. All contentions, as such, of the Respondents with regard to the merits of the proposed amendment are left open. It is not in dispute that the application for amendment was filed before the evidence commenced in the suit. 10. In such circumstances, in 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.” 11. 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. 9. ... 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. MakhanSingh1, 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. BhagwanDas2, 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. BhagwanDas2, 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 Patil3 which 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. RijwanAhamd4, 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.” 12. Considering the ratio laid down in the Judgment of the Apex Court, I find that the Apex Court has clearly held that a liberal view has to be taken where applications for amendments are sought prior to commencement of the trial. No doubt, such relief is to be granted subject to payment of costs to the Respondent nos. 5 to 10/Defendants in the suit. Such costs are quantified at Rs.5,000/-. 13. In view of the above, Rule is made absolute in terms of prayer clause subject to payment of costs of Rs.5,000/- as condition precedent to the Respondent nos. 5 to 10.