Judgment : Rule. Made returnable forthwith. By consent of parties the petition is taken on board for final hearing. 2. The petitioners are the plaintiffs in Civil Suit No.78/2011 wherein they had filed an application for amendment of the plaint. That application was rejected by the trial court vide its order dated 7th January, 2013. The present petition is directed against that order. 3. In their suit the petitioners have sought five permanent reliefs out of which three are for declarations and others for permanent injunctions. The first declaration sought is that the petitioners have an easementary right of access over survey no.26/2 which is being objected to by respondents no.10 & 11, its present owners. The second declaration sought is that the land at survey no.26/2 consists of hilly area with a steep slope and not within the permissible gradient for development and that “Divzam Fator” “Sati Shila” stones cannot be permitted to be destroyed, since they are of sentimental value and historical importance. The third declaration sought is that approval if any obtained by respondents no.10 & 11 from various authorities for sub-division of survey no.26/2 is illegal, null and void. The reliefs of permanent injunctions are (i) to restrain respondents no.10 & 11 from interfering with the suit access; (ii) from carrying out any development activities in the hilly portion of survey no.26/2 and (iii) destroying or shifting or tampering with “Divzam Fator” “Sati Shila”. The sixth relief sought is of direction to respondents no.12 & 13 who are the Director, Archives and Archeological Department of Goa and Superintendent Archeologist, Archeological Survey of India to recognise “Divzam Fator” “Sati Shila” as of archaeological importance. 4. The case set out in the plaint by the petitioners, stated in brief is that petitioner no.1 belongs to Kshatriya Bhandari caste. His family had the house located at survey no.26/3. After the fall of Maratha empire his family and other families residing on the property left the village and settled elsewhere in Goa. Petitioner no.1 learnt from his ancestors that widows of martial soldiers used to do “atmadahan” by jumping into the pyre on the death of their husband at the place of “Sati Shila” and women from his family and others of the same caste used to celebrate divzam at “Divzam Fator”. Petitioner no.1 learnt from his ancestors that widows of martial soldiers used to do “atmadahan” by jumping into the pyre on the death of their husband at the place of “Sati Shila” and women from his family and others of the same caste used to celebrate divzam at “Divzam Fator”. There is also a shrine of Shree Bhandari Kulpurush on the property at survey no.26/3 the access for which has been the suit access. 5. The petitioners further allege in the plaint that the entire property had originally belonged to the ancestor of one Mota Naik Gaunekar and Vinayak Naik Gaunekar. There has been partition of the property in which the land at survey no.26/2 came to be allotted to the family of Vinayak Naik Gaunekar. The present owners of the property are respondents no.10 & 11 who desire to develop the property purchased by them. According to the petitioners the suit access is a cart road with the width of 6 meters which has been used by them since their marriage, initially by plying bullock-carts over it and for the last twenty years by running motor vehicles. 6. At para 2 of the plaint the petitioners make it clear that the suit has been filed by them in individual capacity. Therefore, the averments made in the plaint and the reliefs sought therein will have to be appreciated and considered from the perspective of the petitioners individual and personal rights. Petitioner no.1 has also filed another suit representing “Shree Bhandari Kulpurush Dev Saunsthan” in the capacity of its president along with three others which is pending in the court of Civil Judge, Ponda. 7. The petitioners had taken out an application for interim reliefs to restrain respondents no.10 & 11 inter alia from developing the land at survey no.26/2. The trial Court by its order dated 22nd March, 2012 dismissed the application and allowed the application for temporary injunction filed by respondents no.10 & 11. The petitioners had preferred Appeal from Order no.28/2012 against the order of the trial Court dismissing the application for interim reliefs. The trial Court by its order dated 22nd March, 2012 dismissed the application and allowed the application for temporary injunction filed by respondents no.10 & 11. The petitioners had preferred Appeal from Order no.28/2012 against the order of the trial Court dismissing the application for interim reliefs. The appeal was disposed off by this Court by its order dated 31st August, 2012, recording statement of respondents no.10 & 11 that they would maintain status quo in respect of the stone “Divzam Fator” and maintain the access shown in the original No Objection Certificate dated 25th May, 2011 issued by the Town and Country Planning Department, Ponda, Goa with the width of access as 6 metres. While dismissing the Appeal from Order of the petitioners this Court observed that the claim made by the petitioners in the plaint is vague and without necessary particulars. The petitioners then filed an application for amendment of the plaint to add eight paragraphs and the relief at prayer clause 'AA' for a mandatory order directing respondents no.10 & 11 to remove the encroachment made by them by way of erection of barbed wire fencing on plot D2 belonging to the petitioners forming part of the property of survey no.26/3. The petitioners allege that on 14th July, 2012 respondents no.10 & 11 put a barbed wire fencing which extends into plot no.D2 thereby committing act of encroachment. 8. Respondents no.10 & 11 opposed the application for amendments on several grounds. According to them the amendments sought were more in the nature of evidence and arguments than the relevant facts. The amendment s proposed were not necessary for the purpose of deciding the issue between the parties. Further the proposed amendments changed the nature of the suit by bringing in a boundary dispute. 9. Before touching the rival contentions on the merits of the application for amendments it would be convenient to take note of the legal submissions advanced by both the sides and the citations relied upon by them. Ms. Further the proposed amendments changed the nature of the suit by bringing in a boundary dispute. 9. Before touching the rival contentions on the merits of the application for amendments it would be convenient to take note of the legal submissions advanced by both the sides and the citations relied upon by them. Ms. Agni, the learned Counsel for the petitioner submits that an application for amendment of the plaint is not to be refused on technical grounds since the rules of procedure are intended to be a handmaid to the administration of justice and the Court should always give leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala fide or that by his blunder, he has caused injury to his opponent which may not be compensated for by an order of costs. In support of her submissions she relies upon the decision of the Apex Court in the case of Jai Jai Ram Manohar Lal V/s. National Building Material Supply, Gurgaon reported in AIR 1969 SC 1267 . The observations relied upon by her from the decision read as under: “Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.” For the same submission she also relies upon another decision of the Apex Court in the case of M/s. Ganesh Trading Co. V/s. Moji Ram reported in AIR 1978 SC 484 . 10. Two more decisions of the Apex Court cited by her are in the case of Rajesh Kumar Aggarwal & Ors. V/s. K.K. Modi & Ors. reportedin (2006) 4 SCC 385 and in the case of RameshkumarAgarwal V/s. Rajmala Exports Private Limited & Ors. reportedin (2012) 5 SCC 337 , on the approach of the Court in considering application for amendment. Two more decisions of the Apex Court cited by her are in the case of Rajesh Kumar Aggarwal & Ors. V/s. K.K. Modi & Ors. reportedin (2006) 4 SCC 385 and in the case of RameshkumarAgarwal V/s. Rajmala Exports Private Limited & Ors. reportedin (2012) 5 SCC 337 , on the approach of the Court in considering application for amendment. The relevant observations from the decision in Rajesh Kumar's case (supra) read as follows: “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. 18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. 11. In its decision in Rameshkumar's case, the Apex Court reiterated and reaffirmed the factors required to be taken into consideration while dealing with the applications for amendment in its earlier decision in RevajeetuBuilders & Developers V/s. Narayanaswamy & Sons reported in (2009) 10 SCC 84 . The factors enumerated therein read as follows: (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. 12. Mr. Bhobe on the other hand submits that application for amendment cannot be allowed unless the party seeking amendment satisfies the requirement under Order 6 Rule 17 Civil Procedure Code i.e. to establishing that inspite of due diligence the party could not raise the matter in the original plaint itself. The decision relied upon by Mr. Bhobe must be distinguished on facts. The application for amendment in that case before the Court had been filed when the issues had already been framed. Consequently, the Court's jurisdiction to allow an application for amendment had been taken away unless the condition precedent therefor i.e. of establishing due diligence by the party was satisfied. In the case on hand, the trial has not yet commenced and the issues are not yet framed. 13. There can be no dispute about the proposition of law as established by the ratios in the decision cited by Ms. Agni. It is well established principle that the Court should allow of amendments that would be necessary for determining the real question in controversy between the parties. Merely because the party fails to include certain facts in the original pleadings and files an application subsequently for including those facts, the application cannot be rejected solely on the ground that the applicant was well aware of the facts proposed to be brought on record by way of amendment and ought to have pleaded the same in the original pleadings. What is prohibited by way of an amendment is only to alter cause of action in the suit or to introduce an entirely new or inconsistent cause of action which would virtually amount to substitution of a new plaint or new cause of action in the place of the original plaint. In fact the very provision of Order 6 Rule 17 is to ensure that the parties get an opportunity to place on record all the relevant facts in their pleadings so as to promote the ends of justice and not defeat it. For that purpose however, the factors that have been enumerated above must be taken into consideration. The application of the petitioner is required to be considered against the backdrop of the above legal position. 14. For that purpose however, the factors that have been enumerated above must be taken into consideration. The application of the petitioner is required to be considered against the backdrop of the above legal position. 14. The petitioners propose to add paragraphs 21(a), 21(b), 21(c), 21(d), 22(a), 22(b), 22(c) and relief for mandatory injunction directing respondents no.10 & 11 to remove the barbed fencing in plot no.D2 belonging to the petitioners, forming part of the property at Survey No.26/3. A copy of the draft amendments has been annexed to the petition at pages 77 to 96. Ms. Agni has made a statement that the portions specified by her at proposed paragraphs 21(b), 21(c), 21(d) and 22(c), which have been bracketed by red pencil, are not insisted upon by the petitioners. The portions specified by Ms. Agni are therefore treated as deleted from the draft amendments. Ms. Agni submits that the rest of the proposed amendments are essentially to give further and better particulars of the claim already made in the plaint. The petitioners propose to provide greater clarification of the right of access enjoyed by them and the religious performances at the two sacred stones. According to her the amendments neither change the nature of the suit nor can be said to cause any inconvenience or prejudice to respondents no.10 & 11. 15. Ms. Agni has taken me through the entire draft amendments. The proposed amendments at paragraph 21(a) is seen to bring on record the further particulars of the access, running on the land at survey no.25 before touching upon the land at survey no.26/2. Mrs. Agni submits that the plaint as it stands today describes only the access on the land of respondents no.10 & 11. The proposed amendment at para 21(a) would describe the access right from its starting point. In my opinion, the proposed amendment at paragraph 21(a) would only assist the petitioners to establish the suit access with much more clarity and therefore there should be no difficulty in allowing the same. Mr. Bhobe submits that the proposed amendments is nothing but an attempt on the part of the petitioners in trying to fill up the lacuna in the plaint on account of which they were denied the interim reliefs. He submits that theses deficiencies in the plaint have been noted by this Court also in its order on the appeal from order. Bhobe submits that the proposed amendments is nothing but an attempt on the part of the petitioners in trying to fill up the lacuna in the plaint on account of which they were denied the interim reliefs. He submits that theses deficiencies in the plaint have been noted by this Court also in its order on the appeal from order. Merely because the original proceedings were found deficient in respect of certain relevant facts and the deficiency has resulted into denial of interim reliefs, the same cannot come in the way of an application for amending the plaint to remove the deficiencies. In fact, the very purpose of the provision of Order VI Rule 17 Civil Procedure Code is to remove the deficiencies in the pleading within the permissible limits so that the rival claims are clearly brought forth in the pleadings for the purpose of decision of the Court. The parts of paragraph 21(b) after deleting the portions pointed out by Ms. Agni, which are bracketed in red, would also serve the same purpose. In this paragraph, the petitioners also seek to allege that respondents no.10 & 11 have put up a barbed wire fencing pending the suit so as to cause deviation of the access. Hence, this amendment can also be allowed. 16. The averments at proposed paragraph 21(c) narrate as to what had transpired in this Court during the hearing of Appeal from Order No.28/2012. These averments would be wholly unnecessary for deciding the issues between the parties. Ms. Agni submits that respondents no.10 & 11 had made a certain statement before this Court in the appeal proceedings and also produced a plan indicating an access thereon. This plan would be relevant for the petitioners in establishing their access as it exists at site. Since this would be a matter of evidence, in my opinion it cannot form part of the pleadings. Hence, the amendments at proposed paragraph 21(c) cannot be permitted. 17. The statements at paragraph 21(d), except for the portion bracketed in red, relate to the alleged action of respondents no.10 & 11 of constructing the barbed wire fencing next to alignment of the road and the adverse effect of that fencing upon the access claimed to have been enjoyed by the petitioners. 17. The statements at paragraph 21(d), except for the portion bracketed in red, relate to the alleged action of respondents no.10 & 11 of constructing the barbed wire fencing next to alignment of the road and the adverse effect of that fencing upon the access claimed to have been enjoyed by the petitioners. Since amendment relating to this event of putting up barbed wire fencing has already been allowed, the proposed amendments at paragraph 21(d) can also be permitted at the costs of repetition. 18. The statements at paragraphs 22(a), 22(b) and 22(c) are seen to be the evidence of the religious ceremonies offered by the petitioners, their families and others at the stones of “Sati Shila” and “Divzam Fator”. This being part of the evidence the same need not be included in the pleadings. Therefore, amendments in terms of proposed paragraphs 22(a), 22(b) and 22(c) is refused. The last amendment is of adding relief at prayer clause 'AA' at paragraph 66 of the plaint. Since the prayer is sought to be added so as to take care of the event subsequent to filing of the suit and is relevant to the access claimed by the petitioners, the same will have to be allowed. 19. The petition is therefore partly allowed in the above terms. The rule is accordingly disposed of.