JUDGMENT Heard Shri C. Mascarenhas, learned Counsel appearing for the petitioner, Shri Pavithran A.V., learned Counsel appearing for respondent no.1 and Shri D. Pangam, learned Counsel appearing for respondent no.2. 2. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the respondents waive service. 3. The above petition challenges an order passed by the learned Civil Judge Junior Division at Margao dated 31/12/2012 whereby an application for amendment filed by the petitioner came to be rejected. 4. Briefly, the facts of the case are that the petitioner filed a suit against the respondents inter alia seeking for a declaration essentially on the ground that the demand made by the respondent no.2 to the respondent no.1 is null and void and for an injunction restraining the respondent no.2 from encashing the Bank Guarantee issued in their favour. The respondents filed their written statement disputing the claim of the petitioner. During the pendnecy of the suit it appears that an application for temporary injunction was filed by the petitioner restraining invocation of the said Bank Guarantee which came to be granted. The respondents had challenged the said order which came before the Appellate Court which appeal came to be rejected. In the meanwhile, the suit filed by the petitioner came to be dismissed for default and as such the respondents encashed the said Bank Guarantee. In view of the said subsequent events the petitioner filed an application for amendment to incorporate therein such facts and seek for appropriate relief of refund of the payment of amount paid to the respondent no.2 by respondent no.1, after the suit was restored. The respondents opposed the said application and inter alia contended that the suit has become infructuous and as such the question of granting any amendment would not arise. The learned Judge dismissed the application for amendment by the impugned order. 5. Shri C. Mascarenhas, learned Counsel appearing for the petitioner has assailed the impugned order essentially on the ground that the petitioner desires to incorporate the subsequent events in the plaint. The learned Counsel further pointed out that the learned Judge was not justified to pass such order. The learned Judge dismissed the application for amendment by the impugned order. 5. Shri C. Mascarenhas, learned Counsel appearing for the petitioner has assailed the impugned order essentially on the ground that the petitioner desires to incorporate the subsequent events in the plaint. The learned Counsel further pointed out that the learned Judge was not justified to pass such order. The learned Counsel further pointed out that it is not open for the respondents to make a suit infructuous as the lis was already pending before the Court and merely because the suit filed by the petitioner was dismissed for default. The learned Counsel further pointed out that it is the contention of the petitioner that respondent no.2 was not entitled to encash the Bank Guarantee and as such the petitioner should be granted such relief. The learned Counsel has taken me through the impugned order and pointed out that the learned Judge has erroneously passed the impugned order. 6. On the other hand, Shri Pavithran A.V., learned counsel appearing for the respondent no.1 supported the impugned order and pointed out that the suit has become infructuous and in any event there can be no relief as against the respondent no.1 as the relief, if any, is against the respondent no.2. The learned Counsel further pointed out that respondent no.2 has encashed the Bank Guarantee given by the respondent no.1 in terms of the agreement executed between the parties. The learned Counsel, as such, submits that no interference is called for in the impugned order. 7. Shri D. Pangam, learned Counsel appearing for respondent no.2 has supported the submissions of the learned Counsel appearing for respondent no.1 and further pointed out that the suit itself has become infructuous and, as such, the question of granting any relief would not arise. 8. I have carefully considered the submissions of the learned Counsel and I have also gone through the records. The Apex Court in a recent Judgment dated 27/09/2012 in Civil Appeal no.7043 of 2012 in the case of Abdul Rehman & Anr vs. Mohd. Ruldu & Ors., has clearly held that all amendments which are necessary for deciding the suit should be allowed and the Court should be liberal in granting amendment applications. The Apex Court in a recent Judgment dated 27/09/2012 in Civil Appeal no.7043 of 2012 in the case of Abdul Rehman & Anr vs. Mohd. Ruldu & Ors., has clearly held that all amendments which are necessary for deciding the suit should be allowed and the Court should be liberal in granting amendment applications. The learned Apex Court 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.” In another judgment of the Apex Court reported in 2006 (4) SCC 385 in the case of Rajesh Kumar Aggarwal & Ors. V/s. K.K. Modi & Ors. has inter alia observed at paras 15, 16, 17 & 19 thus: 15. 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. 16. Order VI Rule 17 consist 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. 17. 16. Order VI Rule 17 consist 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. 17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. 19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.” 9. Taking note of the ratio laid down by the Apex Court in the said judgments it is well settled that the merits of the proposed amendment cannot be gone into whilst granting leave to amend the pleadings. In the present case, the suit filed by the petitioner is on the premise that during the entire defect liability period the respondent no.2 or the contractor alleged that the petitioner had failed to remove any defect or damage. It is further the case of the petitioner that the respondent no.1 was not entitled to entertain or satisfy the demand made by another branch of the said Bank. It is further the case of the petitioner that the respondent no.1 was not entitled to entertain or satisfy the demand made by another branch of the said Bank. It is further their case that the invocation of the Bank Guarantee by the respondent no.2 is also beyond the agreed guarantee period and as such the declaration is sought by the petitioner inter alia that the demand made by the respondent no.2 upon respondent no.1 by letter dated 13/02/12007 with respect to the Bank Guarantee No.467/2005 dated 26/04/2005 is fraudulent and malafide and of no legal effects. An injunction was also sought to restrain the respondent no.2 from encashing or receiving any amount under the said Bank Guarantee. It is also not in dispute that an order of temporary injunction was in operation until the suit came to be dismissed for default. The records also reveal that the suit was thereafter restored. The proposed amendment is inter alia to claim that the respondent no.1 has paid the respondent no.2 a sum of Rs.7,87,500/- on 12/07/2011 on behalf of the petitioner as the interim injunction stood vacated and as such the petitioner seeks to incorporate the relief to be reimbursed of the said sum paid to the respondent no.2 with interest thereon. It cannot be disputed that the said allegations are subsequent events which have occurred during the pendency of the suit. The learned Judge whilst passing the impugned order has considered the merits of the claim put forward by the petitioner in the proposed amendment and has come to the conclusion that the respondent no.2 was entitled to encash the Bank Guarantee. The correctness of the conduct of the respondents would have to be ascertained on the face of the allegations made by the petitioner in the original plaint as well as in the proposed amendment. Considering the ratio laid down by the Apex Court in the said judgments it is not permissible for the Court to consider the merits of the allegations at this stage. The learned Judge has also noted the fact that there are no allegations of fraud raised by the petitioner. On perusal of the relief for declaration it is precisely the case of the petitioner that the demand made by the respondent no.2 is fraudulent malafide and of no legal effects. The learned Judge has also noted the fact that there are no allegations of fraud raised by the petitioner. On perusal of the relief for declaration it is precisely the case of the petitioner that the demand made by the respondent no.2 is fraudulent malafide and of no legal effects. The finding of the learned Judge to the effect that the nature of the suit would change cannot be accepted as the relief for seeking the recovery of the amount has arisen on account of the subsequent events which flow from the original pleadings of the petitioner to the effect that the respondent no.2 was not entitled to encash the Bank Guarantee. It is the contention of the petitioner that in terms of the Bank Guarantee the respondent no.2 was not entitled to encash the Bank Guarantee. 10. In view of the above, I find that the learned Judge was not justified to dismiss the application for leave to amend the plaint. In view of the subsequent events, the petitioner was forced to seek leave to amend the plaint. Whether the petitioner is entitled to raise the contentions or seek the relief sought by the proposed amendment is a matter which would be considered on its own merits on the basis of the pleadings of the parties. As such, the impugned order passed by the learned Judge dated 31/12/20012 cannot be sustained and deserves to be quashed and set aside. 11. Hence, I pass the following order: ORDER (i) The impugned order dated 31/12/2012 is quashed and set aside. (ii) The application filed by the petitioner for amendment of the plaint dated 8/11/2012 is allowed. (iii) The respondents are at liberty to file their additional written statement. (iv) Rule is made absolute in the above terms. (v) All contentions of the parties on merits of the proposed amendment are left open. (vi) The petition stands disposed of.